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Glass v Tasmania

Glass v Tasmania

Case [2013] TASCCA 8 5 September 2013

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Procedural Fairness

Sentencing

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Criminal Law

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[2013] TASCCA 8

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

CITATION: Glass v Tasmania [2013] TASCCA 8

PARTIES:  GLASS, Anthony Douglas
  v
  STATE OF TASMANIA

FILE NO/S:  CCA 307/2013
DELIVERED ON:  5 September 2013
DELIVERED AT:  Hobart
HEARING DATE:  14 June 2013
JUDGMENT OF:  Tennent, Estcourt and Pearce JJ

CATCHWORDS:

Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage – Misdirection or non-direction – Non-direction – Failure to direct on potential unreliability of evidence – Failure to direct on permissible use of evidence of uncharged criminal and discreditable conduct - Failure to direct against engaging in impermissible propensity or tendency reasoning.

Criminal Code 1924 (Tas), ss401(1), 402(1), 402(2).
Evidence Act 2000 (Tas), ss165(2), 165(5).
Hargraves v R (2011) 245 CLR 257; Longman v R (1989) 168 CLR 79; Martin v State of Tasmania (2008) 190 A Crim R 77; Doggett v R (2001) 208 CLR 343; Bromley v R (1986) 161 CLR 315; Marlow v R (2002) 113 A Crim R 118; KBT v R (1997) 191 CLR 417; Liberato v R (1985) 159 CLR 507; BRS v R (1997) 191 CLR 275; Qualtieri v R (2006) A Crim R 463; Paton v R [2011] VSCA 72; WFS v R (2011) 33 VR 406; Jiang v R [2010] NSWCCA 277, considered.
Aust Dig Criminal Law [3467]

REPRESENTATION:

Counsel:
             Appellant:  R van de Weil QC and T Kassimatis
             Respondent:  K E Brown
Solicitors:
             Appellant:  Henry Wherett & Benjamin
             Respondent:  Director of Public Prosecutions

Judgment Number: [2013] TASCCA 8
Number of paragraphs: 95

Serial No 8/2013
File No CCA 307/2013

ANTHONY DOUGLAS GLASS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
ESTCOURT J
PEARCE J (Dissenting)
5 September 2013

Orders of the Court

Appeal allowed.

Appellant's conviction and sentence quashed.

Appellant be retried on the indictment, subject to the prosecutorial discretion of the Director of Public Prosecutions.

Serial No 8/2013
File No CCA 307/2013

ANTHONY DOUGLAS GLASS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
5 September 2013

I have had the opportunity to read the reasons of Estcourt J in draft form. I agree with those reasons and with the outcome he proposes.
File No CCA 307/2013

ANTHONY DOUGLAS GLASS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
5 September 2013

The appeal

The appellant appeals against his conviction, following trial, of two counts of aggravated sexual assault and one count of indecent assault.

By notice of appeal dated 12 April 2013 the appellant claimed, on six grounds, that the appellant's trial miscarried as a result of failures on the part of the learned trial judge, Evans J, to direct or properly direct the jury. Grounds 1, 4 and 5 were not pursued on the hearing of the appeal, and a new ground, ground 3A, was added.

The history

The following history of the appeal is taken from 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 Glass v Tasmania

Details

AGLC: Glass v Tasmania [2013] TASCCA 8
Case: [2013] TASCCA 8
Decision Date: 5 September 2013

CaseChat Overview and Summary

The Supreme Court of Tasmania, Court of Criminal Appeal, heard an appeal by the appellant, Glass, against his conviction and sentence. The dispute concerned allegations of criminal conduct, and the appeal was brought on the grounds of a miscarriage of justice.

The central legal issues before the Court were whether the trial judge had failed to adequately direct the jury on the potential unreliability of certain evidence, and whether the judge had erred by not providing sufficient directions regarding the permissible use of evidence relating to the appellant's uncharged criminal and discreditable conduct. Specifically, the Court considered whether the jury had been properly cautioned against engaging in impermissible propensity or tendency reasoning.

The Court found that the trial judge's directions to the jury were insufficient, constituting a miscarriage of justice. The failure to provide adequate warnings about the potential unreliability of key evidence, and the lack of clear guidance on how evidence of uncharged conduct could and could not be used, meant that the jury may have been led to make impermissible inferences about the appellant's character and propensity to commit the offences charged. This amounted to a failure to ensure a fair trial.

Consequently, the Court allowed the appeal, quashed the appellant's conviction and sentence, and ordered that the appellant be retried on the indictment, with the decision to proceed with a retrial resting with the Director of Public Prosecutions.

Orders

Orders of the court

1. Appeal allowed.

2. Appellant's conviction and sentence quashed.

3. Appellant be retried on the indictment, subject to the prosecutorial discretion of the Director of Public Prosecutions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Glass v Tasmania [2013] TASCCA 8

Most Recent Citation

Donohue v Tasmania [2016] TASCCA 17

Cases citing this decision · 1 of 1 shown

Donohue v Tasmania
[2016] TASCCA 17 Para 8

…at [21]-[25] of his reasons. I respectfully adopt that analysis, as well as a further analysis by his Honour, discussed in Glass v State of Tasmania [2013] TASCCA 8, although I note that his Honour was in dissent in that case. In my view, appropriate directions would have obviated any risk of unfair prejudice and…

View all 1 citing cases →

Cases cited in this decision · 23 of 23 shown

Neill-Fraser v Tasmania
[2012] TASCCA 2 Para 1

…real, not fanciful, and it is not enough that a conclusion is reached that a particular direction would have been desirable; Neill-Fraser v Tasmania [2012] TASCCA 2 per Porter J at [249]. In BRS v R (1997) 191 CLR 275, Kirby J said at 330:…
WFS v The Queen
[2011] VSCA 347 Para 1

…In WFS v R (2011) 33 VR 406 the applicant was convicted of an indecent act and incest against his 9-year-old daughter. The Crown case was that in the bathroom of their home the applicant squeezed his daughter's buttock and then put his finger in her vagina. He denied any suggestion of inappropriate conduct. At the…
Hargraves v The Queen
[2011] HCA 44 Para 1

…In a relatively recent re-examination of the Court's earlier decision in Robinson v R (1991) 180 CLR 531, the High Court in Hargraves v R (2011) 245 CLR 257, in a joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, considered the principle governing an appeal alleging "that on any other ground wh…
Paton v The Queen
[2011] VSCA 72 Para 1

…self to amount to a warning against reasoning on a "propensity" or "substitution" basis as to evidence that was not referable to any count: Paton v R [2011] VSCA 72 at [30] - [32].…
Jiang v R
[2010] NSWCCA 277 Para 1

…Jiang v R [2010] NSWCCA 277 is a case in which the discreditable conduct complained of was contemporaneous with the charged conduct. The appellant was convicted of an indecent assault and sexual intercourse without consent. The crimes were committed in the course of performing a massage on a female. Evidence was giv…
Martin v State of Tasmania
[2008] TASSC 66 Para 1

…l law obligations of a trial judge has not, it seems, been finally settled, notwithstanding, in Tasmania, some comments made obiter by Crawford CJ in Martin v State of Tasmania (2008) 190 A Crim R 77 at [24] and [33] - [34]: see Singh v DPP (NSW) (2006) 164 A Crim R 284 at [39] - [42].…
Lambert and Stokes v Tasmania
[2007] TASSC 76 Para 1

…or to be taken into account in determining whether there was a miscarriage of justice: Neill-Fraser v Tasmania (supra), Lambert and Stokes v Tasmania [2007] TASSC 76 per Blow J at [115], the cases referred to by his Honour, and Martin v State of Tasmania (supra) per Blow J at [102].…
Lee v Tasmania
[2006] TASSC 92 Para 1

…rriage of justice, it is necessary to not just consider the passage objected to, but its context and taking the summing-up as a whole; Lee v Tasmania [2006] TASSC 92 per Blow J at [39]. The passage which, in this case, the appellant submits contributes to the risk of impermissible reasoning is part of a passage fr…
Weiss v The Queen
[2005] HCA 81 Para 1

…the "natural limitations" inherent in the exercise of this Court's review of the record does not admit for the application of the proviso: Weiss v R (2005) 224 CLR 300 at [41] and [45].…
R v Heinze
[2005] VSCA 124

…See also R v Heinze (2005) 153 A Crim R 380, per Eames JA at 388 [27].…
Doggett v the Queen
[2001] HCA 46 Para 1

…Similarly, Gleeson CJ in Doggett v R (2001) 208 CLR 343, at [2], said as to the manner in which a trial is conducted:…
KRM v The Queen
[2001] HCA 11 Para 1

…mstances of each case. A propensity warning is not required because an accused faces a multiplicity of counts involving similar offences; see KRM v R (2001) 206 CLR 221 where McHugh J at 233 [33] reviewed the circumstances in which warnings may be necessary. It is correct that the Crown placed reliance on the evidenc…
Robinson v The Queen
[1999] HCA 42 Para 1

…In a relatively recent re-examination of the Court's earlier decision in Robinson v R (1991) 180 CLR 531, the High Court in Hargraves v R (2011) 245 CLR 257, in a joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, considered the principle governing an appeal alleging "that on any other ground wh…
Gipp v The Queen
[1998] HCATrans 212

…sue that arises at trial, it is incumbent upon a trial judge to direct the jury as to the limited use to which that evidence may be put. See Gipp v R (1998) 194 CLR 106 at 112; B R S v R [1997] HCA 47; (1997) 191 CLR 275 at 293 – 294 ; Donnini v R [1972] HCA 71; (1972) 128 CLR 114 at 123. Thus, where evidence of bad…
KBT v The Queen
[1997] HCA 54 Para 1

…mpermissible use by the jury of this evidence of criminal and/or otherwise discreditable conduct. However, as was pointed out by Gaudron J in KBT v R (1997) 191 CLR 417 at 424, if an appellant was, as the appellant was in the present case, in my opinion, deprived "of a chance of an acquittal that was fairly open ...…
BRS v The Queen
[1997] HCA 47

…bent upon a trial judge to direct the jury as to the limited use to which that evidence may be put. See Gipp v R (1998) 194 CLR 106 at 112; B R S v R [1997] HCA 47; (1997) 191 CLR 275 at 293 – 294 ; Donnini v R [1972] HCA 71; (1972) 128 CLR 114 at 123. Thus, where evidence of bad character is properly admitted a…
Jones v The Queen
[1997] HCA 12

…mpermissible use of it might be made by the jury, is demonstrated by the law in respect of evidence of recent complaint in sexual cases. In Jones v R (1997) 143 ALR 52, the High Court unequivocally reiterated the necessity for a direction as to the limited use to be made of such evidence, saying that unless this wer…
Longman v The Queen
[1989] HCA 60 Para 1

…It was accepted in Longman v R (1989) 168 CLR 79 that a legislative provision not unlike s165(2) dispensed only with the requirement to warn of the general danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class, and did not affect the requirement to give a warning, whenever…
Bromley v The Queen
[1986] HCA 49 Para 1

…of evidence of the complainant may have been affected by her delusional state. It was obvious enough and, as was observed by Brennan J in Bromley v R (1986) 161 CLR 315 at 325:…
Liberato v The Queen
[1985] HCA 66 Para 1

…t where, in my view, there was a fundamental misdirection or non-direction. As Deane J, with whom Brennan J agreed in substance, said in Liberato v R (1985) 159 CLR 507 at 520:…
Chamberlain v The Queen
[1983] FCA 74 Para 1

…suggestion that in the atmosphere of the trial at which he was present no miscarriage of justice occurred or was likely to occur": Chamberlain v R (1983) 72 FLR 1 per Bowen CJ and Forster J at 12.…
Donnini v The Queen
[1972] HCA 71

…mbent upon a trial judge to direct the jury as to the limited use to which that evidence may be put. He cites the dictum of Barwick CJ in Donnini v R [1972] HCA 71; (1972) 128 CLR 114 at 123. In that passage, Barwick CJ states that 'evidence of bad character ... is susceptible of use by the jury as indicating a…
Mraz v The Queen
[1955] HCA 59

…stances are such that it is clear that there is no real possibility that justice has miscarried by reason of that misdirection (cf Mraz v The Queen (1955) 93 CLR 493 at 514)".…

Legislation cited in this decision · 2

Evidence Act 1906 (WA)
1 mention (from Para 1)
Evidence Act 2001 (TAS)
1 mention (from Para 1)