Jones v The Queen - [1990] TASSC 44

Serial No 41/1990
List "A"

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

CITATION: Jones v R [1990] TASSC 44; A41/1990

PARTIES:  JONES, Allan William
  v
  R

FILE NO/S:  CCA 117/1989
DELIVERED ON:  4 September 1990
DELIVERED AT:  Hobart
JUDGMENT OF:  Green CJ, Underwood and Wright JJ

Judgment Number: A41/1990
Number of paragraphs: 78

Serial No 41/1990
List "A"
File No CCA 117/1989

ALLAN WILLIAM JONES v THE QUEEN

REASONS FOR JUDGMENT GREEN CJ

UNDERWOOD J
WRIGHT J
4 September 1990

Order of the Court

Appeal dismissed.

Serial No 41/1990
List "A"
File No CCA 117/1989

ALLAN WILLIAM JONES v THE QUEEN

REASONS FOR JUDGMENT GREEN CJ
4 September 1990

The appellant was charged with stealing approximately $38,000 in decimal currency and a quantity of Australian pre–decimal currency the property of the Administrators of the Estate of Thomas Ewart Jones deceased or a person or persons unknown between 4 August 1985 and 19 February 1987. He was also charged with three counts in the alternative. After a trial the appellant was convicted of the first count and as I understand it no verdicts were taken upon the alternative counts.

The appellant appeals against that conviction upon the following grounds:

"1That the learned trial judge erred in fact and in law in allowing the prosecution to re–open its case to call rebuttal evidence from Rosemary Elaine Jones and Jeffrey Thomas Jones.
2That the learned trial judge erred in fact and in law in allowing counsel for the Crown to address the jury again after completion of the summing–up.
3That the cumulative effect of the matters alleged in Grounds 1 and 2 was such as to produce a miscarriage of justice."

The facts and the course which the trial took are set out in the reasons for judgment of the other members of the Court and I do not need to restate them.

Ground 1

Section 371(i) of the Criminal Code provides that one of the rules which shall apply to the proceedings upon the trial of an indictment is that evidence in rebuttal may be called by the Crown "if the judge is of opinion that in the circumstances of the particular case it should be allowed".

In Brown v R (1980) Tas R 61 Neasey and Cosgrove JJ held that the "governing test" of whether the Crown should be given leave to call evidence in rebuttal is that which was laid down by the High Court in Shaw v the Queen (1952) 85 CLR 365 and cited the following passage from the joint judgment of Dixon, McTiernan, Webb and Kitto JJ as being of particular significance:

"Clearly the principle is that the prosecution must present its case completely before the prisoner's answer is made ... When the prisoner seeks to prove good character evidence may be allowed in reply. But the prosecution may not split its case on any issue. The court possesses a power to allow further evidence to be called, but it must be exercised according to…

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 Jones v The Queen

Details

AGLC: Jones v The Queen [1990] TASSC 44
Case: [1990] TASSC 44
Decision Date: 4 September 1990

CaseChat Overview and Summary

The appellant, Allan William Jones, was convicted of stealing approximately $38,000 in decimal currency and a quantity of Australian pre-decimal currency. He appealed against his conviction, claiming a miscarriage of justice due to two alleged errors by the trial judge. The first alleged error was the judge's decision to allow the prosecution to reopen its case to call rebuttal evidence from Rosemary Elaine Jones and Jeffrey Thomas Jones. The second alleged error was the judge's decision to allow counsel for the Crown to address the jury again after completion of the summing up. The appellant conceded that neither ground of appeal, on its own, would justify an order setting aside the appellant's conviction.

The Court found that the judge did not err in allowing the prosecution to call rebuttal evidence. The Court held that the evidence in question emerged only in the course of cross-examination and was not led from the appellant in his evidence-in-chief as one of the issues upon which his defence would depend. The Court further held that the matter dealt with by the rebuttal evidence was not collateral or peripheral to the substantive issues in the case as they had developed by the conclusion of the appellant's evidence.

The Court also found that the judge's decision to allow counsel for the Crown to address the jury again after completion of the summing up did not produce unfairness in the trial. The Court held that the comment made by Crown counsel was brief and referred to but one small part of all the evidence put before the jury. It did not concern a central matter. The jury was properly told that the comment by Crown counsel was just one possibility and that the jury might think that there were a lot of possibilities. The Court concluded that the procedural irregularity which occurred at the conclusion of the summing up did not cause a miscarriage of justice.

In conclusion, the Court dismissed the appeal, finding that the alleged errors did not result in a miscarriage of justice.

Order of the Court: Appeal dismissed.

Orders