Legal Research
Cases
MJL v Tasmania

MJL v Tasmania

Case [2022] TASSC 70 7 September 2022

Trial without Jury

Interests of Justice

Tendency Evidence

Defence of Immature Age

Criminal Law

No judgment structure available for this case.

Type to search within this case.

[2022] TASSC 70

COURT:	SUPREME COURT OF TASMANIA
CITATION:	MJL v Tasmania [2022] TASSC 70
PARTIES:	MJL
v
STATE OF TASMANIA
FILE NO:	834/2020
DELIVERED ON:	7 September 2022
PUBLISHED ON:	2 May 2023
DELIVERED AT:	Hobart
HEARING DATE:	2 September 2022
JUDGMENT OF:	Estcourt J
CATCHWORDS:

Criminal Law - Procedure - Trial had before judge without jury – Election – Trial on indictment – Application for trial without jury – Meaning of "interests of justice" – Persistent sexual abuse of a child – Tendency evidence – Defence of immature age – Process of evaluation required to determine where the interests of justice lie – Application refused.

Criminal Code Act 1924, ss 18, 361AA and 383 and Criminal Procedure Act 2004 (WA), s 118.
Fleming v The Queen (1998) 197 CLR 250; R v Stanley [2013] NSWCCA 124; Gilbert v The Queen [2000]
HCA 15, 201 CLR 414; Arthurs v Western Australia [2007] WASC 182; R v Belghar [2012] NSWCCA 86,
217 A Crim R 1; R v Gittany [2013] NSWSC 1503; R v Abrahams [2013] NSWSC 729; R v Simmons (No 4)
[2015] NSWSC 259, 249 A Crim R 120; R v McNeil [2015] NSWSC 357, 250 A Crim R 12; Doney v The
Queen [1990] HCA 51, 171 CLR 207 and State of Western Australia v Edwards [2018] WASC 419,
considered.

Aust Dig Criminal Law [3165]

REPRESENTATION:

Counsel:

Appellant: K Baumeler
Respondent: L Ogden

Solicitors:

Respondent: Director of Public Prosecutions

Judgment Number:	[2022] TASSC 70
Number of paragraphs:	101

Serial No 70/2022 File No 834/2020

MJL v STATE OF TASMANIA

REASONS FOR JUDGMENT	ESTCOURT J 7 September 2022
The application

1 On 6 July 2022 the accused MJL, who is charged on indictment 206/2021 with one count of persistent sexual abuse of a child or young person contrary to s 125A(2) of the Criminal Code, has filed an application pursuant to s 361AA of the Code seeking an order that the trial of the indictment be conducted by a judge sitting alone.
2 The State opposes the application.
3 Section 361AA of the Code provides, relevantly, as follows:
"361AA Trial by judge alone

(1)

Despite section 361, a party to proceedings in respect of a crime may apply to the court for an order to have the trial in respect of the crime be determined by a single judge in place of a trial by jury.
(2) An application for an order under subsection (1) in respect of a crime –

(a)

may only be made within the 3 month period immediately after the accused person, in respect of the crime, has been committed to trial for the crime.

(3) Despite subsection (2)(a), the court may consider an application made outside of the period specified in that paragraph if the court is satisfied that the applicant has provided a reasonable explanation for the delay…

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 MJL v Tasmania

Details

AGLC: MJL v Tasmania [2022] TASSC 70
Case: [2022] TASSC 70
Decision Date: 7 September 2022

CaseChat Overview and Summary

The case of MJL v Tasmania involved a defendant charged with persistent sexual abuse of a child. The defendant sought to have the trial conducted before a judge alone, without a jury. The Supreme Court of Tasmania was tasked with determining whether the trial should proceed with or without a jury, focusing on the phrase "interests of justice" as outlined in the relevant legislation. The central issue was whether the nature of the offences and the use of tendency evidence warranted a trial without a jury.

The court examined the criteria for determining the interests of justice, which included the gravity of the offence, the nature of the evidence, and the potential impact on the defendant and the victim. The court held that the persistent sexual abuse of a child constituted a grave offence, and the use of tendency evidence could significantly affect the proceedings. The court concluded that the defendant's age at the time of the offences, while relevant, did not outweigh the need to consider the broader interests of justice, which favoured a jury trial to ensure a fair process and protect the rights of the victim.

In light of the analysis, the court denied the application for a trial without a jury. The court reasoned that a jury trial would best serve the interests of justice by providing an impartial forum for evaluating the evidence and ensuring a fair process for all parties involved. The court's decision emphasised the importance of considering the specific circumstances of each case when determining whether a trial should proceed with or without a jury.

The final orders of the court were that the trial of MJL would proceed before a judge and jury, and the application for a trial without a jury was dismissed. The court's decision underscored the significance of the "interests of justice" in criminal trials involving serious offences and the use of tendency evidence.

Orders