Isherwood v Tasmania - [2010] TASCCA 11

[2010] TASCCA 11

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

CITATION: Isherwood v Tasmania [2010] TASCCA 11

PARTIES:  ISHERWOOD, Christopher Malcolm
  v
  STATE OF TASMANIA

FILE NO/S:  CCA 241/2009
DELIVERED ON:  2 September 2010
DELIVERED AT:  Hobart
HEARING DATES:  5 and 6 May 2010
JUDGMENT OF:  Crawford CJ, Evans and Blow JJ
CATCHWORDS:

Criminal Law – Procedure – Witnesses – Powers of judge – Presence of witnesses in court before giving evidence – Discretion – Unrepresented accused wishing witness to act as McKenzie friend.

Moore v Lambeth County Court Registrar [1969] 1 All ER 782; Tomlinson v Tomlinson [1980] 1 All ER 593; R v Bassett [1952] VLR 535; R v Tait [1963] VR 520, referred to.
Aust Dig Criminal Law [3145]

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage – Other irregularities – Unrepresented accused – Procedural determinations made without inviting submissions – Failure to advise as to rights of parties to address jury.
MacPherson v R (1981) 147 CLR 512, applied.
R v Coman [1955] VLR 289, not followed.

R v Andrews (1938) 27 Cr App R 12; R v Nilson [1971] VR 853; Dietrich v R (1991) 177 CLR 292; Black v Smith (1984) 30 NTR 29; Abram v Bank of New Zealand (1996) 18 ATPR 41-507; Pezos v Police (2005) 94 SASR 154; Tomasevic v Travaglini (2007) 17 VR 100, referred to.
Aust Dig Criminal Law [3469]

Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Appeal allowed – Evidence displaying inadequacy and lacking probative force – Possession of child exploitation material – Inadequate evidence of knowledge by accused that material was in his custody.

Chidiac v R (1991) 171 CLR 432; M v R (1994) 181 CLR 487, applied.
Aust Dig Criminal Law [3475]

REPRESENTATION:

Counsel:
             Appellant:  In Person
             Respondent:  T J Ellis SC
Solicitors:
             Appellant:  In Person
             Respondent:  Director of Public Prosecutions

Judgment Number: [2010] TASCCA 11
Number of paragraphs: 86

Serial No 11/2010
File No CCA 241/2009

CHRISTOPHER MALCOLM ISHERWOOD v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD CJ
EVANS J
BLOW J
2 September 2010

Orders of the Court

Appeal allowed.

Conviction quashed.

Sentence and other consequential orders set aside.

Verdict of not guilty entered.

Serial No 11/2010
File No CCA 241/2009

CHRISTOPHER MALCOLM ISHERWOOD v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD CJ
EVANS J
BLOW J
2 September 2010

The appellant was tried and found guilty on a single charge of possessing child exploitation material, contrary to the Criminal Code, s130C. He was convicted and sentenced to six months' imprisonment, which was wholly suspended. An order was made under the Community Protection (Offender Reporting) Act 2005 requiring his name to be placed on the register under that Act, and requiring him to comply with the reporting obligations under that Act, for three years. He has…

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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Details

Case: [2010] TASCCA 11
Decision Date: 2 September 2010

CaseChat Overview and Summary

The appeal concerned the conviction of Isherwood for possession of child exploitation material. The central dispute revolved around procedural fairness afforded to the unrepresented accused during his trial in the Supreme Court of Tasmania.

The Court of Criminal Appeal was required to determine whether the trial judge erred in refusing to permit a witness to remain in court to act as a McKenzie friend for the unrepresented accused. Further, the Court had to consider whether the trial judge’s procedural determinations, made without inviting submissions from the accused, and the failure to advise the parties of their rights to address the jury, constituted a miscarriage of justice. Finally, the Court was asked to assess whether the verdict was unreasonable or insupportable, having regard to the evidence presented at trial.

The Court found that the trial judge’s refusal to allow the witness to act as a McKenzie friend, without affording the accused an opportunity to make submissions, was an error. This, coupled with the failure to inform the accused of his right to address the jury, amounted to a miscarriage of justice. Furthermore, the Court concluded that the evidence regarding the accused’s knowledge that the child exploitation material was in his custody was inadequate and lacked sufficient probative force to support the conviction.

Consequently, the appeal was allowed, the conviction was quashed, and the sentence and other consequential orders were set aside. A verdict of not guilty was entered.

Orders

Orders of the court

1. Appeal allowed.

2. Conviction quashed.

3. Sentence and other consequential orders set aside.

4. Verdict of not guilty entered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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