Jagd v Tasmania - [2021] TASCCA 16

[2021] TASCCA 16

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	JAGD v Tasmania [2021] TASCCA 16
PARTIES:	D, JAG
v
STATE OF TASMANIA
FILE NO:	CCA 3115/2019
DELIVERED ON:	10 March 2021
DELIVERED AT:	Hobart
HEARING DATE:	26 November 2020
JUDGMENT OF:	Estcourt J, Pearce J, Porter AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Particular grounds of appeal – Conduct of defence counsel – Appellant found guilty of rape – Defence case one of consensual sexual intercourse – Where appellant and complainant previously known to each other – Where evidence of complainant's prior sexual interest in the appellant – Where communications between complainant and appellant after the incident arguably inconsistent with non-consensual sexual intercourse – Failure of defence counsel to properly pursue communications issue in cross-examination and in closing address – Failure to ascertain and utilise relevant evidence – Miscarriage of justice – Order for retrial.

TKWJ v The Queen [2002] HCA 46, 212 CLR 124; Nudd v The Queen [2006] HCA 9, 80 ALJR 614; R v Birks
(1990) 19 NSWLR 677, applied.

Aust Dig Criminal Law [3515]

REPRESENTATION:

Counsel:

Applicant: C Gunson SC, A Kendall
Respondent: D G Coates SC

Solicitors:

Applicant: Phillips Taglieri
Respondent: Director of Public Prosecutions

Judgment Number:	[2021] TASCCA 16
Number of paragraphs:	114

Serial No 16/2021

File No CCA 3115/2019

JAGD v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL ESTCOURT J PEARCE J PORTER AJ 10 March 2021
Orders of the Court:

1            Leave to appeal granted; appeal allowed.
2            Conviction quashed; sentencing orders set aside.
3            Applicant to be retried.

Serial No 16/2021

File No CCA 3115/2019

JAGD v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL ESTCOURT J 10 March 2021
The appeal

1   The applicant sought leave to appeal against his conviction on 22 November 2019, following a
jury verdict of guilty upon his trial for the crime of rape.
2               Both the applicant and the respondent sought to read affidavits on the hearing of the appeal. With one exception where the evidence was regarded by the Court as irrelevant, the affidavits of both parties were received de bene esse. For my part I do not need to have recourse to any of the evidence so received.
3   The grounds of the applicant's appeal are that there was a miscarriage of justice arising as a
result of the conduct of his trial.
4   Absent the particulars set out in it, the amended notice of appeal reads as follows:

"2 There was a miscarriage of justice in that the Applicant was deprived of a fair trial
because of:
(a) the incompetence of his counsel;
(b) the misconduct of the prosecutor at the trial; and/or

(c) the failure of the learned trial judge to discharge the jury in circumstances in which the prosecutor had:

(i) disclosed to counsel for the Applicant a large report of an extraction of…

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 Jagd v Tasmania

Details

AGLC: Jagd v Tasmania [2021] TASCCA 16
Case: [2021] TASCCA 16
Decision Date: 10 March 2021

CaseChat Overview and Summary

The Supreme Court of Tasmania, constituted by Estcourt J, Pearce J, and Porter AJ, considered an appeal by a man found guilty of rape. The central dispute revolved around the defence's assertion that the sexual intercourse was consensual, despite the complainant's evidence to the contrary. The appellant and complainant were known to each other, and evidence was presented regarding the complainant's prior sexual interest in the appellant, as well as communications between them after the incident that could be interpreted as inconsistent with a non-consensual encounter.

The primary legal issue before the Court was whether the conduct of the appellant's defence counsel amounted to a miscarriage of justice, thereby warranting a new trial. Specifically, the Court had to determine if the defence counsel's failure to adequately pursue the significance of the post-incident communications during cross-examination and in the closing address, and their failure to ascertain and utilise relevant evidence, prejudiced the appellant's case to the extent that it rendered the conviction unsafe.

The Court reasoned that the defence counsel's handling of the communications evidence was deficient. They found that the potential inconsistency between the complainant's evidence of non-consent and her subsequent communications with the appellant was a crucial aspect of the defence case that was not properly explored or presented. This failure, coupled with other potential evidentiary oversights, led the Court to conclude that there had been a miscarriage of justice.

Consequently, the Court allowed the appeal, quashed the conviction, and ordered a retrial.

Orders