DLS v Tasmania - [2024] TASCCA 10

[2024] TASCCA 10

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	DLS v Tasmania [2024] TASCCA 10
PARTIES:	DLS
v
STATE OF TASMANIA
FILE NO:	CCA 2843/2023
DELIVERED ON:	6 September 2024
DELIVERED AT:	Hobart
HEARING DATE:	31 May 2024
JUDGMENT OF:	Blow CJ, Martin AJ, Porter AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to evidence - Appeal dismissed – Penetrative sexual abuse of a young person – Whether open to jury to find crimes committed during period specified in indictment.

Aust Dig Criminal Law [3476]

Cases cited:
Director of Public Prosecutions v Jarvis (a pseudonym) [2018] VSCA 173, 55 VR 543
M v The Queen (1994) 181 CLR 487
R v Dean [1932] NZLR 753
R v Dossi (1918) 13 Cr App R 158
R v Hughes [2000] NSWCCA 3
R v Jacobs [1993] 2 Qd R 541
R v McDonald (1995) 65 SASR 322

R v Pfitzner (1976) 15 SASR 171

REPRESENTATION:

Counsel:

Applicant: R Barry
Respondent: P Sherriff

Solicitors:

Applicant: Josh Smith Legal – Barristers & Solicitors Pty Ltd
Respondent: Director of Public Prosecutions

Judgment Number:	[2024] TASCCA 10
Number of paragraphs:	37

Serial No 10/2024

File No CCA 2843/2023

DLS V STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL BLOW CJ MARTIN AJ PORTER AJ 6 September 2024
Orders of the Court:

1 Leave to appeal granted.
2 Appeal dismissed.

Serial No 10/2024

File No CCA 2843/2023

DLS V STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL
BLOW CJ
6 September 2024

1 This is an application for leave to appeal against four convictions for sexual crimes. The applicant, DLS, was charged on a single count of persistent sexual abuse of a young person, contrary to s 125A(2) of the Criminal Code. He stood trial before Jago J and a jury. The Crown contended that he had committed unlawful sexual acts against a 14-year-old girl on eight occasions "between on or about 1 January 2021 and 3 February 2021". The jury found him not guilty of the crime charged, but guilty of four crimes of penetrative sexual abuse of a young person, contrary to s 124(1) of the Criminal Code. Those findings related to occasions described at the trial as "Occasion two" and "Occasion four". In relation to each of those occasions, the jury found that the applicant had penetrated the complainant's vagina with his fingers, and then penetrated her mouth with his penis. The learned trial judge sentenced him to 2 years 6 months' imprisonment, with a non-parole period of 15 months. This is an application for leave to appeal from those convictions. The notice of appeal contains a single ground, which was amended at the hearing to assert that the verdicts of the jury should be set aside on the ground that they cannot be supported having regard to the evidence.
2 This is an application for leave…

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 DLS v Tasmania

Details

AGLC: DLS v Tasmania [2024] TASCCA 10
Case: [2024] TASCCA 10
Decision Date: 6 September 2024

CaseChat Overview and Summary

The appeal concerned a conviction for penetrative sexual abuse of a young person. The appellant, DLS, sought to appeal against the verdict of the jury, arguing that it was unreasonable or unsupportable having regard to the evidence presented at trial. The appeal was heard by the Full Court of the Supreme Court of Tasmania, comprising Blow CJ, Martin and Porter AJJ.

The central legal issue before the Full Court was whether it was open to the jury to find that the crimes, as particularised in the indictment, were committed during the specific period alleged. This required the court to consider the evidence relating to the timing of the alleged offences and whether the jury's findings on this aspect were reasonably open to them.

The Full Court dismissed the appeal. Their Honours reasoned that the jury had been presented with sufficient evidence to conclude that the offences occurred within the specified timeframe. The court applied the principles governing appeals against jury verdicts, particularly the test for determining whether a verdict is unreasonable or unsupportable. The evidence, when viewed in its totality and in a manner most favourable to the prosecution, allowed for the jury to make the findings they did regarding the period during which the penetrative sexual abuse occurred.

Orders