[2015] TASCCA 13
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Lin v Tasmania [2015] TASCCA 13
PARTIES: LIN, Tu Ai
v
STATE OF TASMANIA
FILE NO: 875/2011
DELIVERED ON: 16 June 2015
DELIVERED AT: Hobart
HEARING DATE/S: 18, 19, 20 August 2014
JUDGMENT OF: Porter, Wood and Pearce JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage – Alleged misdirection – Full Azzopardi direction not given – Direction sufficient as it covered the same ground and fulfilled the purpose.
R v Wilson (2005) 26 NSWLR 346, applied.
Aust Dig Criminal Law [3470]
Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage – Misdirection – Circumstantial case – Direction that a reasonable explanation consistent with innocence is not a possibility – Reference to distinction between reasonable explanation and "mere possibility" or "bare possibility" of innocence – Directions erroneous and a miscarriage of justice.
R v Lancefield [1999] VSCA 176; R v Compton and Barratt [2013] SASCFC 134, considered.
Barr v The Queen (2004) 14 NTLR 164, applied.
Aust Dig Criminal Law [3466]
Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Appeal ground dismissed – Circumstantial case based on business records – Where jury misdirected on the standard of proof – In the absence of misdirection finding of guilt open to the jury on the whole of the evidence – Order of acquittal not appropriate – Retrial ordered.
Aust Dig Criminal Law [3476]
Evidence – Documentary evidence – Statutory provisions relating to business records – Criminal cases – Prosecution case based on business records – Makers of representations not apparent from records – Request by accused for the prosecution to call makers of the representations – Prosecution position that makers of some to be called but otherwise the representations were those of the accused – Finding of trial judge that prosecution had shown reasonable cause for failing to call the makers – Finding of trial judge reasonably open.
Evidence Act 2001 (Tas), ss 167, 169.
Aust Dig Evidence [121]
Evidence – Admissibility and relevancy – Opinion evidence – Expert opinion – Other cases – Handwriting expert – Expert asked to assume specimen writings likely to be that of the accused – No direct evidence of authorship of specimen writings – Jury asked to infer that the accused was the author – Inference reasonably open – Expert evidence that the same person was the author of specimen writings and questioned writings relevant.
Aust Dig Evidence [64]
REPRESENTATION:
Counsel:
Appellant: P E Barker SC and K Baumeler
Respondent: A R Jacobs and H Mannering
Solicitors:
Appellant: Butler McIntyre & Butler
Respondent: Acting Director of Public Prosecutions
Judgment Number: [2015] TASCCA 13
Number of paragraphs: 179
Serial No 13/2015
File No 875/2011
TU AI LIN v STATE OF TASMANIA
REASONS FOR JUDGMENT…
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- Lin v Tasmania [2015] TASCCA 13
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- [2015] TASCCA 13
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CaseChat Overview and Summary
The Court was required to determine whether the trial judge's directions to the jury constituted a miscarriage of justice. Specifically, the appeal raised questions about whether the judge's directions on circumstantial evidence, including the absence of a full *Azzopardi* direction, were adequate. The Court also considered whether the judge's explanation of the distinction between a reasonable explanation of innocence and a mere possibility of innocence was erroneous. Further issues included the reasonableness of the trial judge's finding that the prosecution had shown reasonable cause for not calling the makers of certain business records, and the admissibility and relevance of handwriting expert evidence.
The Court found that while the *Azzopardi* direction was not given in its full form, the judge's directions covered the same ground and fulfilled the purpose of that direction. However, the Court held that the judge's direction stating that a reasonable explanation consistent with innocence was not a possibility, and the reference to the distinction between a reasonable explanation and a "mere possibility" or "bare possibility" of innocence, were erroneous and amounted to a miscarriage of justice. Despite these misdirections, the Court found that the jury's verdict of guilt was open to them on the whole of the evidence, particularly given the prosecution's case was based on business records and handwriting expert evidence, and that an acquittal was not appropriate.
Consequently, the Court allowed the appeal, quashed the conviction, and ordered that the appellant be retried on the indictment.
Orders
Orders of the court
1. Appeal allowed.
2. The appellant be retried on the indictment.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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