CITATION: Gardenal-Williams v R [1989] TASSC 29; (1989) Tas R 62; A23/1989
PARTIES: GARDENAL-WILLIAMS v R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS) JURISDICTION: APPELLATE FILE NO/S: CCA 44/1988 DELIVERED ON: 9 June 1989 DELIVERED AT: Hobart JUDGMENT OF: Green CJ, Neasey, Nettlefold, Underwood and Wright JJ
Judgment Number: A23/1989 Number of paragraphs: 77
Serial No 23/1989 List "A" File No CCA 44/1988
GARDENAL-WILLIAMS v R
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ NEASEY J NETTLEFOLD J UNDERWOOD J WRIGHT J 9 June 1989
Orders of the Court
Appeal allowed.
Conviction and sentence quashed.
New trial directed.
Serial No 23/1989 List "A" File No CCA 44/1989
GARDENAL-WILLIAMS v R
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ 9 June 1989
The appellant was convicted of arson contrary to s268 of the Criminal Code. Because of the nature of the submissions which counsel for the appellant indicated he proposed making, the court before which the hearing commenced granted an application that the hearing be adjourned so that the appeal could be heard by a court comprising five judges.
The Crown case was in essence that the appellant unlawfully set fire to the dwelling house in which she resided as a tenant by lighting a number of fires including one which resulted in a linen cupboard catching fire which in turn caused the house to ignite. Although the house was not burnt down it was open to the jury to find that the fabric of the house was burnt sufficiently to constitute the crime of arson. The Crown case did not establish any motive for the crime.
In addition to some direct evidence which tended to establish some elements of the crime but which did not implicate the appellant the evidence presented by the Crown comprised principally evidence of a signed record of interview and some circumstantial evidence. The appellant gave evidence in the course of which she said that she did not light the fire and was not present when it was started. She admitted that the police had interviewed her but denied that the record of interview was typed in her presence, denied that she had made the incriminating admissions attributed to her and asserted that she signed the record of interview under pressure and because of a promise made by a police officer that "she would fix up any mistakes that were in it" after the appellant had signed it. At the trial the learned trial judge directed the jury, and the Crown virtually conceded, that if the jury entertained a reasonable doubt as to whether the record of interview was an accurate record of what was said. or as to whether the accused's admissions were true, they would be obliged to acquit the accused.
Two of the grounds of appeal are as follows:—
"(aa)The Applicant's conviction should be set aside on the basis that the Court of Criminal Appeal was on in error in The Queen –v– Hodgson No 40/1985…
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.
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AGLC
Gardenal-Williams v R [1989] TASSC 29
Case
[1989] TASSC 29
Decision Date
CaseChat Overview and Summary
In the case of Gardenal-Williams v R, the appellant was convicted of arson. The primary issues before the Court of Criminal Appeal were whether the appellant's conviction should be set aside due to an alleged error in the previous decision of The Queen v Hodgson, and whether the trial judge erred in law by not admitting the appellant's written statement into evidence under s81B of the Evidence Act 1910. The Court of Criminal Appeal, comprising five judges, found that the appeal should be allowed, the conviction quashed, and a new trial ordered.
Regarding the first issue, the Court held that the appellant had not demonstrated that the decision in The Queen v Hodgson was manifestly incorrect. The Court of Criminal Appeal emphasised the importance of the doctrine of stare decisis and held that a previous decision should only be overruled in exceptional circumstances, such as when the earlier decision was shown to have been arrived at without regard to an applicable statutory provision or binding authority, or when the chain of reasoning contained a manifest contradiction or flaw.
As for the second issue, the Court found that the trial judge erred in law by not admitting the appellant's written statement into evidence under s81B of the Evidence Act 1910. The Court held that the appellant's statement was made at a time when the facts stated in the document were fresh in her memory, and that the trial judge's rejection of the document was an error which vitiated the trial and resulted in a miscarriage of justice. The Court held that the exclusion of evidence of this kind from the jury's consideration was not subject to the proviso, and that a retrial was necessary.