Devine v R - [2003] TASSC 51

[2003] TASSC 51

CITATION: Devine v R [2003] TASSC 51

PARTIES:  DEVINE, Robert Joseph
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 37/2002

CCA 38/2002

DELIVERED ON:  3 July 2003
DELIVERED AT:  Hobart
HEARING DATE/S:  5 June 2003
JUDGMENT OF:  Crawford, Slicer and Evans JJ

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Juries - Discharge and excusing from attendance - Other matters - Circumstances warranting discharge - Contact with juror by unknown party - Whether enquiry by judge necessary

Antonio Zampaglioni v R (1982) 6 A Crim R 287; R v Thompson (1983) Qd R 224, applied.

Aust Dig Criminal Law [769]

REPRESENTATION:

Counsel:
             Appellant/Applicant:  In person
             Respondent:  J N Perks
Solicitors:
             Appellant:  In Person
             Respondent:  Director of Public Prosecutions

Judgment ID Number: [2003] TASSC 51
Number of paragraphs: 20

Serial No 51/2003
File Nos CCA 37/2002
CCA 38/2002

ROBERT JOSEPH DEVINE v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD

SLICER J
EVANS J
3 July 2003

Orders of the Court:

The appeals against conviction and sentence are dismissed.

Serial No 51/2003
File Nos CCA 37/2002
CCA 38/2002

ROBERT JOSEPH DEVINE v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD J
  3 July 2003

I agree with the reasons for judgment of Slicer J and the orders he proposes.
File Nos CCA 37/2002
CCA 38/2002

ROBERT JOSEPH DEVINE v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

SLICER J
3 July 2003

The appellant was convicted of the crimes of aggravated burglary and stealing and appeals against both conviction and sentence.

In the early hours of 3 February 2000, four men went to an isolated residence at Moogara occupied by an elderly widow. There was a suspicion that a fifth person, who had knowledge of the domestic affairs and financial circumstances of the widow, was implicated, but no charges were laid against that person. Following forced entry by three of the men, the complainant was seized, blindfolded and bound. The men, who were in the house for about an hour, stole $18,000 in money, a stamp collection, firearms, and war medals of the deceased husband of the victim. The robbery was planned and professionally executed. No fingerprints or forensic evidence, other than a cigarette butt left by one of the robbers, were found at the scene and the telephone was disabled to prevent early notification of the crime. The victim suffered a post-traumatic stress disorder as a consequence of the invasion and which, as the learned sentencing judge concluded, left "her life in ruins". A co-offender, Pyke, was implicated through DNA evidence recovered from the cigarette butt. The appellant denied responsibility and neither of the other two men have been identified.

The appellant represented himself at trial. The grounds of appeal against conviction relate to the failure of the learned trial judge to either discharge the jury (or at least make appropriate enquiry to ascertain whether circumstances warranted discharge) and to the unfairness of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Devine v R

Details

AGLC: Devine v R [2003] TASSC 51
Case: [2003] TASSC 51
Decision Date: 3 July 2003

CaseChat Overview and Summary

The case of Devine v R involved the appellant, Robert Joseph Devine, who appealed against both his conviction and sentence. The Court of Criminal Appeal of Tasmania heard the matter, with the appeal being dismissed by Crawford, Slicer, and Evans JJ. The appellant was convicted of aggravated burglary and stealing following an incident where an elderly widow was held at gunpoint and robbed of significant sums of money, a stamp collection, firearms, and war medals. Devine denied any involvement in the crime, which was professionally executed with no forensic evidence left behind except for a cigarette butt. The primary issues for the court were whether the trial judge should have discharged the jury or made further enquiry into allegations that jurors had been approached and threatened, and whether the appellant's right to a fair trial was compromised by the trial process. The court found that the trial judge appropriately balanced the need for a fair trial against the potential prejudice to the appellant by not making further enquiry into the allegations. The court also determined that the appellant's representation of himself did not prejudice his case, and that the sentence imposed was not manifestly excessive. The appeals against both conviction and sentence were dismissed.

Orders