Hurst v Tasmania

[2011] TASCCA 12

[2011] TASCCA 12

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

CITATION:                 Hurst v Tasmania [2011] TASCCA 12

PARTIES:  HURST, Luke Maurice
  v
  STATE OF TASMANIA

FILE NO/S:  308/2011
DELIVERED ON:  22 September 2011
DELIVERED AT:  Hobart
HEARING DATE:  13 September 2011
JUDGMENT OF:  Evans, Porter and Wood JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Particular grounds of appeal – Misdirection and non-direction – Particular cases – Where appeal allowed – No presumption as to the primacy of either written or oral directions.

The People, v Rodriguez 2000 92 Cal Rptr 2d 236 and R v Burns (2009) 103 SASR 514, not followed.
Aust Dig Criminal law [3490]

REPRESENTATION:

Counsel:
             Appellant:  D Kerr SC and J Bourke
             Respondent:  G Hoare
Solicitors:
             Appellant:  Blissenden Lawyers
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2011] TASCCA 12
Number of paragraphs:  23

Serial No 12/2011
File No 308/2011

LUKE MAURICE HURST v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J
PORTER J
WOOD J
22 September 2011

Order of the Court

On 13 September 2011 it was ordered that the appeal be allowed, the appellant's conviction be quashed and the appellant be bailed to appear at a later date.

Serial No 12/2011
File No 308/2011

LUKE MAURICE HURST v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J
PORTER J
WOOD J
22 September 2011

1. At the conclusion of the hearing of this appeal, we allowed it and quashed the appellant's conviction on two counts of wounding.  We said that we would publish our reasons later.  These are those reasons.

1. The appellant was tried on charges that, contrary to the Criminal Code, s172, he at Mount Nelson on or about 22 January 2010:

(1)unlawfully wounded Stephen Joseph by stabbing him in the back with a knife; and

(2)unlawfully wounded Angela Nicholls by cutting her to the neck and chest with a knife.

1. The case advanced by the prosecution on the trial was that during an altercation outside the property where the complainants, Stephen Joseph and Angela Nicholls resided, the appellant wounded each of them with a knife.

1. It was common ground that on the evening of the day in question, as the appellant and his girlfriend, Emily Robinson, walked past the property where the complainants resided, there was a verbal altercation between Stephen Joseph and the appellant.  This resulted in both complainants walking down the steps from their first floor unit to a car park where they confronted the appellant and Ms Robinson.  Punches were exchanged between the men, most of which did not connect.  However, Mr Joseph was able to punch the appellant to the face, causing him to fall to the ground. 

1. The prosecution's case was that upon seeing the appellant struck by Mr Joseph, Ms Robinson smashed a bottle over Mr Joseph's head.  This prompted Ms Nicholls to grab a stake and use it to hit Ms Robinson to the head.  Contemporaneously with these events, the appellant got…