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Leaman v The Queen

Leaman v The Queen

Case [1987] TASSC 21 17 March 1987

Miscarriage of Justice

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TASSC A9/1987

CITATION: Leaman v The Queen [1987] TASSC 21; A9/1987

PARTIES:  LEAMAN, Maxwell Keith
  v
  THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 59/1986
DELIVERED ON:  17 March 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF:  Neasey, Cox and Underwood JJ

CATCHWORDS:

REPRESENTATION:

Counsel:
             Appellant:
             Respondent:
Solicitors:
             Appellant:
             Respondent:

Judgment Number: TASSC A9/1987
Number of paragraphs: 63

Serial No A9/1987
File No CCA 59/1986

MAXWELL KEITH LEAMAN v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NEASEY J (dissenting)

COX J
UNDERWOOD J
17 March 1987

Orders of the Court:
1 That the appeal be allowed.
2 That the conviction of the appellant for the crime of murder be quashed.
3That there be a new trial of the appellant at the sittings of the Court commencing at Hobart on the 27 day of April 1987.

Serial No A9/1987
File No CCA 59/1986

MAXWELL KEITH LEAMAN v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

NEASEY J
17 March 1987

I have had the advantage of reading in draft form the judgment of Cox J, and I agree with and adopt his Honour‘s statement of the primary facts; though I shall be referring further to the evidence in the course of these reasons. The appellant’s principal contention is that the learned trial judge erred in the exercise of his discretion in refusing to grant the appellant a separate trial. Section 363 of the Criminal Code provides in substance that where persons are jointly charged in an indictment the judge may at any time during the trial, on the application of any of the accused persons, direct a separate trial. There is no right of appeal as such against the exercise of a judge‘s discretion in refusing such an application, and therefore a complaint that the discretion was wrongly exercised is ordinarily tested after the trial is over, and is subsumed within the court’s power under s402 of the Code to set aside a verdict on the ground of a miscarriage of justice – Sproule v The Queen CCA 51/1962. See also The Queen v Harbach (1973) 6 SASR 427 at 433; R v Beavan (1952) 69 WN (NSW) 140; R v Kerekes (1953) 70 WN (NSW) 102.

If the trial judge fails, in effect, to exercise his discretion at all (R v Callaghan and Thomas (1966) VR 17), or does not exercise it upon proper principles or fails to take into account all material matters, no doubt the court would be likely to hold that there had been a miscarriage of justice; although it might in Tasmania, under s402(2), dismiss the appeal if it considered that no substantial miscarriage of justice had actually occurred – cf R v Demirok (1976) VR 244 at 251; Carter, Criminal Law of Queensland, 2nd ed, 474. A court of appeal will not regard the trial judge‘s discretion as having been erroneously exercised because its members or any of them would have decided the…

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 Leaman v The Queen

Details

AGLC: Leaman v The Queen [1987] TASSC 21
Case: [1987] TASSC 21
Decision Date: 17 March 1987

CaseChat Overview and Summary

In the case of Leaman v The Queen, Maxwell Keith Leaman, the appellant, and his wife Gail Leaman were jointly indicted for the murder of Pauline Glover, a woman who had lived with the appellant as his wife. The Crown alleged that the appellant murdered Glover by striking her with a shovel or other instrument and burying her alive, and that Gail Leaman aided or abetted him to commit the murder. The appellant applied for separate trials, which was refused by the learned trial judge. The jury returned a verdict of guilty of murder against the appellant and not guilty of murder, but guilty of being accessory after the fact to murder, against Gail Leaman. The appellant appealed against his conviction on the ground that there had been a miscarriage of justice by reason of the failure of the learned trial judge to order separate trials. The Court of Criminal Appeal allowed the appeal and ordered a new trial. The court held that the joint trial denied the accused a fair trial and resulted in a miscarriage of justice because the prejudicial effect of the inadmissible evidence was not adequately neutralised by appropriate instructions to the jury. The unsworn statement made by the co-accused was so prejudicial to the appellant that notwithstanding the clear directions of the learned trial judge, the jury could not be expected to consider the case against the appellant uninfluenced by it. The joint trial produced a miscarriage of justice insofar as the appellant was concerned, and his conviction ought to be quashed. The court ordered a new trial.

Orders