Marshall and Richardson v Tasmania

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[2016] TASCCA 21

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

CITATION:                Marshall and Richardson v Tasmania [2016] TASCCA 21

PARTIES:  MARSHALL, Damien Wesley
  v
  STATE OF TASMANIA

RICHARDSON, Sean Gregory

v
STATE OF TASMANIA

FILE NOS:  CCA 2192/2015

CCA 2195/2015

DELIVERED ON:  7 December 2016
DELIVERED AT:  Launceston
HEARING DATE:  11 November 2016
JUDGMENT OF:  Tennent, Estcourt and Brett JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Particular grounds of appeal – Irregularities in relation to jury – Matters available to jury in jury room – Printouts about meaning of "beyond reasonable doubt" and how to deal with circumstantial evidence found in jury room after verdict – Has irregularity affected the verdict and would jury have returned same verdict had irregularities not occurred? – Impact of directions of trial judge on question.

R v Wilton [2013] SASCFC 60; Gilbert v The Queen [2000] HCA 15, 109 A Crim R 580; Sio v The Queen [2016] HCA 32, followed.
Aust Dig Criminal Law [3512]

REPRESENTATION:

Counsel:
             First Appellant:  E Hughes
             Second Appellant:  E Hughes
             Respondent:  J Ransom
Solicitors:
             First Appellant:  Rae & Partners Lawyers
             Second Appellant:  Rae & Partners Lawyers
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2016] TASCCA 21
Number of paragraphs:  76

Serial No 21/2016

File Nos  2192/2015

2195/2015

DAMIEN WESLEY MARSHALL v STATE OF TASMANIA
SEAN GREGORY RICHARDSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J
ESTCOURT J
BRETT J
7 December 2016

Order of the Court

Appeals dismissed.

Serial No 21/2016

File Nos  2192/2015

2195/2015

DAMIEN WESLEY MARSHALL v STATE OF TASMANIA
SEAN GREGORY RICHARDSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J
7 December 2016

  1. I have had the benefit of reading the draft reasons of Brett J. I agree with those reasons and would also dismiss both appeals.

File Nos 2192/2015
2195/2015

DAMIEN WESLEY MARSHALL v STATE OF TASMANIA
SEAN GREGORY RICHARDSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

ESTCOURT J
7 December 2016

The appeals

  1. On 17 September 2015 the appellants, Sean Gregory Richardson and Damien Wesley Marshall, were each found guilty by a jury of one count of aggravated assault and one count of wounding.

  2. Both men have appealed to this Court on the ground that the jury had regard to documents during the course of its deliberations which were not in evidence in the trial, and that a miscarriage of justice occurred as a result.

  3. The documents referred to were three pages of computer printout from a website, the uniform resource locator of which was < It appears to have been prepared in the United States of America. Two pages were devoted to the legal definition of the term "beyond reasonable doubt" and the third related to the legal definition of circumstantial evidence ("the Free Dictionary documents"). The documents were found by the trial judge's attendant when  cleaning up in…

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Details
Case
[2016] TASCCA 21
Decision Date

CaseChat Overview and Summary

Marshall and Richardson appealed their convictions to the Full Court of the Supreme Court of Tasmania following a trial before a judge and jury. The central issue on appeal concerned alleged irregularities in relation to the jury, specifically the discovery of printouts within the jury room after the verdict had been delivered. These printouts contained information regarding the meaning of "beyond reasonable doubt" and guidance on dealing with circumstantial evidence.

The Full Court was required to determine whether these irregularities had affected the verdict and, if so, whether the jury would have returned the same verdict had the irregularities not occurred. The court also had to consider the impact of the trial judge's directions on these questions.

The Court reasoned that while the presence of the printouts constituted an irregularity, it did not necessarily vitiate the verdict. The judges applied the principle that an irregularity will only lead to a new trial if it can be shown to have actually affected the verdict or if there is a real possibility that it did. In this instance, the Court found that the directions given by the trial judge were clear and comprehensive, and that the jury had been properly instructed on the relevant legal principles. Consequently, the Court concluded that the jury would have reached the same verdict even in the absence of the printouts.

The appeals were accordingly dismissed.

Orders

Orders of the court

Appeals dismissed.

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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