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DJK v Tasmania

DJK v Tasmania

Case [2017] TASCCA 17 12 September 2017

Appeal

Jurisdiction

Statutory Construction

Criminal Law

Statutory Interpretation

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[2017] TASCCA 17

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: DJK v Tasmania [2017] TASCCA 17

PARTIES:  DJK
  v
  STATE OF TASMANIA

FILE NO:  1291/2017
DELIVERED ON:  12 September 2017
DELIVERED AT:  Hobart
HEARING DATE:  24 August 2017
JUDGMENT OF:  Blow CJ, Martin and Porter AJJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Particular grounds of appeal – Inconsistent verdicts – Appellant convicted of rape but acquitted of aggravated sexual assault – Incidents separated in time – Stronger evidence as to rape.

MacKenzie v The Queen (1996) 190 CLR 348, referred to.
Aust Dig Criminal Law [3478]

Criminal Law – Appeal and new trial – Fresh evidence – Materiality and cogency – Other cases – Rape – Potential defence witness not called at trial.

R v Abou-Chabake [2004] NSWCCA 356, 149 A Crim R 417, referred to.
Aust Dig Criminal Law [3505]

Criminal Law – Appeal and new trial – Conduct of prosecutor or prosecution – Addresses – Personal opinions – References to consequences of verdicts.

R v Livermore [2006] NSWCCA 334, 67 NSWLR 659; Causevic v The Queen [2008] NSWCCA 238, 190 A Crim R 416, referred to.
Aust Dig Criminal Law [3514].

REPRESENTATION:

Counsel:
             Appellant:  K Baumeler
             Respondent:  D G Coates SC, J Shapiro
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASCCA 17
Number of paragraphs: 140

Serial No 17/2017
File No 1291/2017

DJK v TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
MARTIN AJ
PORTER AJ
12 September 2017

Order of the Court

Appeal dismissed.

Serial No 17/2017
File No 1291/2017

DJK v TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
12 September 2017

This appeal should be dismissed, for the reasons stated by Martin AJ.
File No 1291/2017

DJK v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

MARTIN AJ

12 September 2017

Introduction

After a short trial in which the appellant gave evidence, he was found guilty by a jury of rape. However, he was found not guilty of a charge of aggravated sexual assault. The appellant appeals against his conviction on grounds related to the opening and closing addresses of the prosecutor and on the basis that the verdict is "unsafe and unsatisfactory in all of the circumstances". In addition, the appellant seeks to place before the Court evidence which was not led at the trial and which the appellant contends demonstrates that a miscarriage of justice has occurred.
For the reasons that follow, in my opinion the appeal should be dismissed.

Evidence

The events in question occurred 13/14 April 2014. At that time the female complainant was aged 19 years. In 2013 the complainant was in a relationship with a female person, Ms A, but that relationship ended in February 2014. Ms A introduced her to the appellant and it is common ground that during 2013 the complainant and Ms A were friends with the appellant…

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 DJK v Tasmania

Details

AGLC: DJK v Tasmania [2017] TASCCA 17
Case: [2017] TASCCA 17
Decision Date: 12 September 2017

CaseChat Overview and Summary

The appellant, DJK, was convicted of rape following a trial in Tasmania. The Crown had also charged DJK with aggravated sexual assault in relation to a separate incident. The jury acquitted DJK of the aggravated sexual assault charge but convicted him of rape. DJK appealed his conviction for rape to the Full Court of the Supreme Court of Tasmania.

The central legal issue before the Full Court was whether the jury's verdicts were inconsistent, thereby vitiating the conviction for rape. Specifically, the Court had to consider whether the acquittal on the aggravated sexual assault charge, when viewed alongside the conviction for rape, demonstrated that the jury had failed to properly apply the law or had reached a verdict that was logically impossible.

The Full Court dismissed the appeal. Their Honours reasoned that the two offences, while both sexual assaults, involved different elements and were alleged to have occurred at different times. The evidence presented at trial was also distinct for each charge. The Court found that the jury could have reasonably concluded that the evidence supporting the rape charge was stronger than the evidence supporting the aggravated sexual assault charge, leading to different verdicts without necessarily indicating an error in their deliberations. The principle applied was that inconsistent verdicts are only grounds for appeal if they are so illogical as to be incapable of being explained by the jury’s proper application of the law to the evidence presented.

Orders