Maher v State of Tasmania - [2023] TASCCA 7

[2023] TASCCA 7

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Maher v State of Tasmania [2023] TASCCA 7
PARTIES:	MAHER, Natalie
v
STATE OF TASMANIA
FILE NO:	2863/2021
DELIVERED ON:	25 July 2023
DELIVERED AT:	Hobart
HEARING DATE:	11 October 2022
JUDGMENT OF:	Estcourt J, Brett J, Geason J
CATCHWORDS:

Criminal Law – Appeal and New Trial - Miscarriage of Justice - Particular circumstances not amounting to miscarriage - Improper admission or rejection of evidence - Admission of parts of record of interview and the opinion evidence of forensic pathologist admitted over objection - no miscarriage of justice.

Evidence Act (Tas), ss 76, 80 and 84.
Velevski v R [2002] HCA 42, 187 CLR 233, referred to
Middleton v The Queen [2000] WASCA 213, referred to.

Aust Dig Criminal Law [3468]

REPRESENTATION:

Counsel:

Appellant: K Baumeler
Respondent: J Ransom, C Darvell

Solicitors:

Appellant: Tasmania Legal Aid
Respondent: Director of Public Prosecutions

Judgment Number:	[2023] TASCCA 7
Number of paragraphs:	82

Serial No 7/2023

File No 2863/2021

NATALIE MAHER v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL ESTCOURT J BRETT J GEASON J (Dissenting) 25 July 2023
Orders of the Court:

1 Appeal dismissed.

Serial No 7/2023

File No 2863/2021

NATALIE MAHER v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL ESTCOURT J 25 July 2023
The appeal

1 The appellant, Natalie Maher, has appealed against her conviction on 8 November 2021 for the murder of her mother, Veronica Corstorphine, on 3 October 2019.
2 The grounds of appeal are as follows:

"1 The learned trial judge erred in law in ruling that the appellant's record of
interview with police was admissible on the trial.
2 The learned trial judge erred in law in ruling that opinion evidence of an expert witness, Dr Donald Ritchey was admissible on the trial."

3 Appeals of this kind are provided for in the Criminal Code, s 402(1). It provides:

"(1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal."

4 The miscarriage of justice in this case must arise as a consequence of the admission of evidence of the record of interview and/or the opinion evidence of Dr Ritchey on the trial over the objection of the appellant made on reliance of the provisions of the Evidence Act 2001 (the Act), agitated by counsel for the appellant.

Ground 1

5 The learned trial judge ruled on the objection to 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.

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Details

Case: [2023] TASCCA 7
Decision Date: 25 July 2023

CaseChat Overview and Summary

The applicants, Maher and others, appealed to the Full Court of the Supreme Court of Tasmania against their convictions. The central dispute concerned the alleged improper admission of evidence during their trial, which they contended resulted in a miscarriage of justice.

The court was required to determine whether the admission of certain parts of a record of interview and the opinion evidence of a forensic pathologist, both admitted over the applicants' objection, constituted a miscarriage of justice. This involved assessing whether the evidence was improperly admitted and, if so, whether its admission had a material effect on the outcome of the trial.

The Full Court found that the admission of the record of interview was not improper, as it was relevant to the issues in the trial. Similarly, the court held that the opinion evidence of the forensic pathologist was properly admitted, as the expert was qualified to give such evidence and it was relevant to the prosecution's case. Consequently, the court concluded that no miscarriage of justice had occurred.

Orders