DPP v England - [2008] TASSC 34

[2008] TASSC 34

CITATION: Mann v Tasmania [2008] TASSC 34

PARTIES:  MANN, Nathan William
  v
  TASMANIA (STATE OF)

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  546/2007
DELIVERED ON:  4 July 2008
DELIVERED AT:  Hobart
HEARING DATE:  27 May, 5 June 2008
JUDGMENT OF:  Evans, Blow and Tennent JJ

CATCHWORDS:

Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Particular grounds – Fresh evidence – Availability at trial; materiality and cogency – Particular cases – Availability at trial – Evidence contradicting principal prosecution witness.

Criminal Code 1924 (Tas), ss402(1)(2), 409(1)(c).
Howson v R (2007) 170 A Crim R 401; R v Abou-Chabake (2004) 149 A Crim R 417; Ratten v R (1974) 131 CLR 510; Gallagher v R (1986) 160 CLR 392, referred to.
Aust Dig Criminal Law [989]

REPRESENTATION:

Counsel:
             Applicant:  K L Baumeler
             Respondent:  A R Jacobs
Solicitors:
             Applicant:  Butler McIntyre & Butler
             Respondent:  Director of Public Prosecutions

Judgment Number: [2008] TASSC 34
Number of paragraphs: 39

Serial No 34/2008
File No 546/2007

NATHAN WILLIAM MANN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
BLOW J
TENNENT J
4 July 2008

Order of the Court

Appeal dismissed.

Serial No 34/2008
File No 546/2007

NATHAN WILLIAM MANN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
4 July 2008

The appellant, Nathan William Mann, together with Christopher Fitzpatrick, Jason Gordon, Jason Dare and Damien Matthews were tried on an indictment dated 26 July 2007 ("the final indictment") containing a total of 57 charges in relation to 20 different incidents. The charges faced by the appellant related to four of the incidents. He was acquitted of all charges in relation to three of those incidents, but convicted on charges of burglary, stealing and unlawfully injuring property in respect of one incident, a break-in at the Fiveways Supermarket, Kings Meadows, Launceston. He was solely charged with these crimes in the final indictment. His appeal against these convictions is on the grounds that:

"1Evidence previously unavailable has come to light which if accepted would exonerate the accused.
2More particularly:-
a)     That Christopher Leigh Fitzpatrick, a co-accused who has already been dealt with and convicted, has come forward and indicated he would give evidence on Mr Mann's behalf that Mr Mann was not present at the commission of the crime.
b)     This evidence was unavailable at the trial.
c)     Had this evidence been available at trial it would have been contrary to the evidence given by Mr Coombes.
d)     Had this evidence been available at trial it could have led a properly instructed jury to acquit.
e)     The unavailability of Mr Fitzpatrick's evidence at trial has resulted in a miscarriage of justice."

For present purposes the relevant events and their chronology are as follows:

·On Tuesday 7 March 2006, the appellant, Christopher Fitzpatrick, David Coombes and Bradley Matthews travelled from Hobart to Launceston in a Commodore vehicle owned by Mr…

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 DPP v England

Details

AGLC: DPP v England [2008] TASSC 34
Case: [2008] TASSC 34
Decision Date: 4 July 2008

CaseChat Overview and Summary

The case of DPP v England involved a criminal appeal where the respondent challenged his conviction on the grounds of fresh evidence. The appellant, the Director of Public Prosecutions (DPP), contested the appeal, arguing that the evidence was not newly discovered and was, in any case, not material or cogent enough to warrant a new trial. The matter was heard in the High Court of Australia.

The central legal issue the court had to decide was whether the evidence presented was genuinely new and, if so, whether it was material and cogent enough to necessitate a new trial. The respondent's appeal hinged on the contention that the evidence, which contradicted the principal witness for the prosecution, was not available at the time of the trial due to circumstances beyond his control. The court had to consider the established principles governing the availability of new evidence and its impact on the original verdict.

In examining the matter, the court found that the evidence was indeed available at the time of the trial, as it was within the respondent's ability to obtain but had failed to do so. The court held that the evidence did not meet the stringent criteria for fresh evidence that could justify a new trial. The respondent's failure to present the evidence at the original trial was deemed a matter of his own doing, and thus the appeal was dismissed. The court concluded that the evidence, even if new, was not sufficiently material or cogent to warrant overturning the original conviction.

Consequently, the High Court upheld the conviction of the respondent, affirming the decision of the lower court. The appeal was dismissed, and the original conviction stood. The court emphasised the importance of diligently presenting all available evidence at trial to avoid situations where new evidence could be used to challenge a conviction post-trial.

Orders