TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS) JURISDICTION: APPELLATE FILE NO/S: CCA 132/1999 DELIVERED ON: 2 November 2000 DELIVERED AT: Hobart HEARING DATE: 23 August 2000 JUDGMENT OF: Cox CJ, Underwood and Evans JJ
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Miscarriage of justice - Misdirection and non-direction - Whether advising jury to examine or analyse doubt as to reasonableness constitutes a misdirection on the standard of proof.
Criminal law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Miscarriage of justice - Misdirection and non-direction - Evidence of alibi - Whether jury should be warned that rejection of alibi does not necessarily lead to an inference of guilt.
Counsel: Appellant: O P Holdenson QC Respondent: M A Stoddart Solicitors: Appellant: Avery Keal Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 153 Number of paragraphs: 71
Serial No 153/2000 File No CCA 132/1999
AARON JOE THOMAS GRAHAM v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ UNDERWOOD J EVANS J 2 November 2000
Orders of the Court
Appeal allowed.
Conviction quashed.
Order that the appellant be re-tried.
Serial No 153/2000 File No CCA 132/1999
AARON JOE THOMAS GRAHAM v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ 2 November 2000
The appellant was convicted of one count of committing an unlawful act intended to cause bodily harm, the particulars being that he:
"… at West Hobart in Tasmania did on or about the 15th day of October 1998 with intent to maim, disable and/or do grievous bodily harm to Stephen Darrell Bannister did (sic) cause actual bodily harm to the said Stephen Darrell Bannister by hitting him to the face with a shovel, breaking his jaw, by hitting him in the back with a shovel and by cutting him on the lower legs causing the achilles tendon of the right leg to be severed and partially severing the achilles tendon of the left leg also causing arterial nerve and tendon damage and by stabbing him to the back of both hands".
The Crown case was that the appellant had gone to Bannister's home in West Hobart on 15 October 1998 at about 11.50am, accompanied by another unnamed man. James Berry had been visiting Bannister, but left almost immediately after the arrival of the appellant and his companion. Both Berry and Bannister claimed prior…
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
Graham v R [2000] TASSC 153
Case
[2000] TASSC 153
Decision Date
CaseChat Overview and Summary
The case of Graham v R involved an appeal against conviction by Aaron Joe Thomas Graham of committing an unlawful act intended to cause bodily harm to Stephen Darrell Bannister. The primary issue before the Court of Criminal Appeal was whether the trial judge's directions to the jury regarding the standard of proof, the consequences of finding an alibi false, and the burden of proof constituted errors that warranted a new trial. The appellant contended that the trial judge failed to properly direct the jury on the consequences of rejecting an alibi, the burden of proof, and the standard of proof. The Court found that the trial judge's direction regarding the standard of proof was erroneous as it invited the jury to analyse their doubts, which is impermissible. This error was deemed fundamental and constituted a miscarriage of justice, leading to the conviction being quashed and a new trial ordered. The other grounds of appeal, including the failure to warn the jury against inferring guilt from a false alibi and the adequacy of directions regarding the burden of proof, were not found to be grounds for allowing the appeal.