Legal Research
Cases
JCS v Tasmania

JCS v Tasmania

Case [2014] TASCCA 6 28 November 2014

Appeal

Sentencing

Statutory Construction

Criminal Law

Evidence

Statutory Interpretation

Type to search within this case.

[2014] TASCCA 6

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

CITATION: JCS v Tasmania [2014] TASCCA 6

PARTIES:  S, J C
  v
  STATE OF TASMANIA

FILE NO:  CCA 481/2014
DELIVERED ON:  28 November 2014
DELIVERED AT:  Hobart
HEARING DATE:  14 November 2014
JUDGMENT OF:  Blow CJ, Porter and Wood JJ

CATCHWORDS:

Criminal Law – Evidence – Complaints – Other matters – Warnings – Possible unreliability of hearsay evidence.

Evidence Act 2001 (Tas), s 165.
Longman v The Queen (1989) 168 CLR 79; Singh v Director of Public Prosecutions (2006) 164 A Crim R 284, referred to.

Aust Dig Criminal Law [2770]

Criminal Law – Evidence – Credibility – Other matters – Warnings – Sexual offences against children – Evidence of adult of event in childhood.

Evidence Act 2001 (Tas), s 165(1)(c).
Longman v The Queen (1989) 168 CLR 79; JJB v The Queen (2006) 161 A Crim R 187; FGC v Western Australia (2007) 183 A Crim R 313; Anderson v Western Australia (2014) 46 WAR 363, referred to.

Aust Dig Criminal Law [2877]

Criminal Law – Sentence – Sentencing procedure – Factual basis for sentence – Evidence – Burden and standard of proof.

R v Olbrich (1999) 199 CLR 270; Weininger v The Queen (2003) 212 CLR 629, followed.

Aust Dig Criminal Law [3312]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Indecent assault on partner's child – Sentence of four months' imprisonment not manifestly excessive.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  E G J Hughes
             Respondent:  P Sherriff
Solicitors:
             Appellant:  Rae & Partners
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2014] TASCCA 6
Number of paragraphs: 51

Serial No 6/2014
File No CCA 481/2014

JCS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
PORTER J
WOOD J
28 November 2014

Order of the Court (14 November 2014)

Appeal dismissed.

Serial No 6/2014
File No CCA 481/2014

JCS v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
PORTER J
WOOD J
28 November 2014

The appellant was tried on a single charge of maintaining a sexual relationship with a young person under the age of 17 years. The young person was his partner's daughter. At his trial, the Crown contended that he had committed unlawful sexual acts upon her on three identifiable occasions. The jury found him not guilty of the crime charged, but found him guilty of one crime of indecent assault. The learned trial judge, Pearce J, convicted him of that crime and sentenced him to four months' imprisonment. He appealed against both his conviction and his sentence. On 14 November 2014 we dismissed his appeal. These are our reasons for dismissing it.
The complainant gave evidence at the trial of the appellant committing unlawful sexual acts on three identifiable occasions, as follows. First, she…

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 JCS v Tasmania

Details

AGLC: JCS v Tasmania [2014] TASCCA 6
Case: [2014] TASCCA 6
Decision Date: 28 November 2014

CaseChat Overview and Summary

JCS appealed against a sentence of four months' imprisonment imposed by the Supreme Court of Tasmania for an indecent assault on his partner's child. The appeal concerned the admissibility and weight of certain evidence, particularly in relation to the complainant's evidence of events that occurred when she was a child.

The central legal issues before the Full Court of the Supreme Court of Tasmania were whether the trial judge erred in admitting certain evidence, and whether the sentence imposed was manifestly excessive or inadequate. Specifically, the court considered the potential unreliability of hearsay evidence and the credibility of the complainant's evidence concerning events from her childhood. The court also examined the factual basis for the sentence and the applicable burden and standard of proof in sentencing proceedings.

The Full Court upheld the trial judge's decision regarding the admissibility of the evidence, finding that the concerns about the complainant's evidence were matters for the jury to consider in assessing her credibility. The court applied established principles regarding the admission of evidence in sexual offence cases, including the need for careful consideration of potential unreliability. Regarding the sentence, the court found that the four-month term of imprisonment was not manifestly excessive, taking into account the nature of the offence and the circumstances of the case.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

JCS v Tasmania [2014] TASCCA 6

Most Recent Citation

TAB v Moore [2017] TASSC 65

Cases citing this decision · 1 of 1 shown

TAB v Moore
[2017] TASSC 65 Para 7

…ant was not entitled to the mitigation which would have arisen had it been agreed or established that this was an isolated occurrence: JCS v Tasmania [2014] TASCCA 6 at [38] and following.…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

Anderson v The State of Western Australia
[2014] WASCA 230 Para 13

…cided 25 years ago. A pertinent observation about " Longman warnings" was made recently in another case in the Western Australian Court of Appeal – Anderson v Western Australia (2014) 46 WAR 363 – by McLure P, with whom Buss and Mazza JJA agreed, at [41]: "However, given the now proven magnitude of past sexual offending against child…
Anderson v The State of Western Australia
[2014] WASCA 137 Para 13

…nt observation about " Longman warnings" was made recently in another case in the Western Australian Court of Appeal – Anderson v Western Australia (2014) 46 WAR 363 – by McLure P, with whom Buss and Mazza JJA agreed, at [41]: "However, given the now proven magnitude of past sexual offending against children and the…
Singh v Director of Public Prosecutions (NSW)
[2006] NSWCCA 333 Para 6

…uty to give an appropriate caution or warning, even when there is no statutory obligation to do so: Longman v The Queen (above) per Deane J at 95-96; Singh v Director of Public Prosecutions (2006) 164 A Crim R 284 per Basten JA, with whom Whealy and Latham JJ agreed, at [44].…
Weininger v The Queen
[2003] HCA 14 Para 3

…The relevant principles were considered by the High Court again in Weininger v The Queen (2003) 212 CLR 629. The appellant in that case had pleaded guilty to a charge of importing a commercial quantity of cocaine. He had no prior convictions. The sentencing judge was provided with a statement saying that he had told…
Doggett v the Queen
[2001] HCA 46 Para 9

…That passage was cited with approval by Kirby J in Doggett v The Queen (2001) 108 CLR 343 at [124].…
R v Olbrich
[1999] HCA 54 Para 1

…Thus in R v Olbrich (1999) 199 CLR 270, Gleeson CJ, Gaudron, Hayne and Callinan JJ said at [25]: "References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such…
Papakosmas v The Queen
[1999] HCA 37 Para 1

…idence; and evidence of the complaint given by the mother was therefore admissible. It was admissible as evidence of the truth of the facts asserted: Papakosmas v The Queen (1999) 196 CLR 297. However s 165(1)(a) requires evidence admitted under s 66(2)(b) to be treated as "evidence of a kind that may be unreliable".…
R v Johnston
[1998] QCA 469 Para 11

…sdom about human behaviour, which may represent the limitations of their background. This has been shown to be so in sexual assault cases. (See R v Johnston (1998) 45 NSWLR 362 at 367-368.) Legislative intervention was required to overcome the tendency of male judges to treat sexual assault complainants as prone to be…
M v the Queen
[1994] HCA 63 Para 3

…In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said at 494-495: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt exper…
Chidiac v The Queen
[1991] HCA 4 Para 2

…asonably, should have entertained a reasonable doubt as to the guilt of the accused in relation to the crime of indecent assault: Chidiac v The Queen (1991) 171 CLR 432 at 443.…
Longman v The Queen
[1989] HCA 60 Para 8

…ed upon her perceptions of an event that occurred when she was 11 years old. He relied on a passage in the judgment of Deane J in Longman v The Queen (1989) 168 CLR 79. That case concerned two alleged offences, said to have occurred when the complainant was 6 years old and 10 years old, each involving indecent touch…
Chamberlain v The Queen (No 2)
[1984] HCA 7 Para 3

…In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said at 494-495: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resol…
House v R
[1936] HCA 40 Para 1

…principles to be applied by an appellate court when considering such a contention are as stated by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 in the following passage at 504–505: "It is not enough that the judges composing the appellate court consider that, if they had been in the position…
House v The King
63 WN 176 Para 1

…ly excessive. The principles to be applied by an appellate court when considering such a contention are as stated by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 in the following passage at 504–505: "It is not enough that the judges composing the appellate court consider that, if they had been in th…

Legislation cited in this decision · 1

Evidence Act 2001 (TAS)
165, 165(1)(c) 3 mentions (from Para 4)