SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:
JD v Tasmania [2023] TASCCA 11
PARTIES:
JD
v
STATE OF TASMANIA
FILE NO:
1819/2022
DELIVERED ON:
10 October 2023
DELIVERED AT:
Hobart
HEARING DATE:
25 August 2023
JUDGMENT OF:
Estcourt J, Pearce J and Jago J
CATCHWORDS:
Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage – Improper admission or rejection of evidence – Tendency evidence – Evidence of applicant’s tendency to have a sexual interest in young or adolescent females within his care – Probative value of tendency evidence significant – Risk of jury improperly using or giving disproportionate weight to tendency evidence sufficiently addressed by trial judge’s directions – Probative value outweighed danger of unfair prejudice – No miscarriage of justice.
Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Appeal dismissed – Matters submitted by counsel to establish doubt as to applicant’s guilt frequently encountered in historic cases of sexual assault against children – Complainant’s account circumstantially supported by tendency evidence – Open to the jury to be satisfied beyond reasonable doubt that applicant was guilty.
Criminal Law – Appeal and new trial – Particular grounds of appeal – Misdirection and non-direction – Consideration of summing up as a whole – Allegation of inadequate summing up by trial judge – Summing up took place on same day as detailed address from defence counsel – defence counsel did not request further relevant directions from the trial judge after summing up – Summing up was adequate in the circumstances – No miscarriage of justice.
COURT OF CRIMINAL APPEAL ESTCOURT J PEARCE J JAGO J 10 OCTOBER 2023
Orders of the Court:
1. Leave to appeal granted
2. Appeal dismissed
Serial No 11/2023 File No 1819/2022
JD v STATE OF TASMANIA
REASONS FOR JUDGMENT
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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AGLC
JD v Tasmania [2023] TASCCA 11
Case
[2023] TASCCA 11
Decision Date
CaseChat Overview and Summary
The applicant, JD, appealed to the Full Court of the Supreme Court of Tasmania against his conviction. The central dispute concerned the admission of evidence at trial which the applicant argued constituted a miscarriage of justice.
The Full Court was required to determine whether the admission of tendency evidence, specifically evidence of the applicant’s alleged tendency to have a sexual interest in young or adolescent females within his care, amounted to a miscarriage of justice. This involved assessing whether the probative value of this evidence was outweighed by the danger of unfair prejudice to the applicant.
The Court reasoned that the tendency evidence had significant probative value. It found that the trial judge had adequately addressed the risk of the jury improperly using or giving disproportionate weight to this evidence through their directions. Consequently, the Court concluded that the probative value of the evidence outweighed the danger of unfair prejudice, and therefore, no miscarriage of justice had occurred.
Leave to appeal was granted, but the appeal was ultimately dismissed.