Isherwood v Tasmania

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.