MJP v Tasmania - [2023] TASCCA 5

[2023] TASCCA 5

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	MJP v Tasmania [2023] TASCCA 5
PARTIES:	MJP
v
STATE OF TASMANIA
FILE NO:	CCA 949/2022
DELIVERED ON:	28 April 2023
DELIVERED AT:	Hobart
HEARING DATE:	3 March 2023
JUDGMENT OF:	Brett J, Jago J, Martin AJ
CATCHWORDS:

Criminal Law – Appeal and New Trial - Miscarriage of Justice - Particular circumstances not amounting to miscarriage - Improper admission or rejection of evidence - Evidence of an admission - Counsel’s objection deferred but not renewed or pursued - Evidence said to be inadmissible because probative value outweighed by danger of unfair prejudice - Accused bound by conduct of counsel - Evidence admissible in any event

Evidence Act (Tas), s137.
Hamilton v The Queen [2021] HCA 33, 394 ALR 194, referred to.

Aust Dig Criminal Law [3468]

REPRESENTATION:

Counsel:

Appellant: F Cangelosi
Respondent: L Pennington

Solicitors:

Respondent: Director of Public Prosecutions

Judgment Number:	[2023] TASCCA 5
Number of paragraphs:	39

Serial No 5/2023

File No CCA 949/2022

MJP v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

BRETT J
JAGO J
MARTIN AJ

28 April 2023

Orders of the Court:

1 Leave granted.

2 Appeal dismissed.

3 No 5/2023

Serial No 5/2023

File No CCA 949/2022

MJP v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL
BRETT J
28 April 2023

1 I agree with Martin AJ. I would grant leave and dismiss the appeal.
4 No 5/2023

File No CCA 949/2022

MJP v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL
JAGO J
28 April 2023

2 I have had the benefit of reading the reasons for judgment of Martin AJ. I agree with those reasons. I join in the order dismissing the appeal.
5 No 5/2023

File No CCA 949/2022

MJP v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL MARTIN AJ 28 April 2023
Introduction

3             The appellant was charged on indictment with 11 counts of sexual offending against two complainants. Counts 1-3 charged two crimes of indecent assault, and one of rape, in respect of complainant A. Counts 4-11 charged a number of sexual crimes against complainant B, but during a trial before a jury Pearce J found there was no case to answer with respect to counts 5,7, 10 and 11, and directed acquittals with respect to those counts.
4            The jury convicted the appellant in respect of counts 1-3 relating to complainant A, and counts 4, 6, 8 and 9 with respect to complainant B.
5             The appellant filed a notice of appeal against his conviction on the basis that the verdict of the jury was "unsafe". Subsequently the appellant was granted leave to file an amended notice of appeal asserting that the appellant "experienced a miscarriage of justice at trial, resulting from:

"1 the failure of his trial counsel to object to the evidence of Dr McDougall on the
basis of the Evidence…

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 MJP v Tasmania

Details

AGLC: Piggott v Tasmania [2023] TASCCA 5
Case: [2023] TASCCA 5
Decision Date: 28 April 2023

CaseChat Overview and Summary

The appeal concerned MJP, the appellant, and Tasmania, the respondent, in the Supreme Court of Tasmania. The dispute arose from MJP's conviction for a criminal offence, following which MJP appealed against that conviction. The central contention on appeal was that a miscarriage of justice had occurred due to the admission of certain evidence.

The primary legal issue before the Court was whether the admission of evidence, specifically an alleged admission by MJP, constituted a miscarriage of justice. This involved determining whether the evidence was improperly admitted, particularly in light of an objection raised by MJP's counsel that was deferred but not subsequently renewed. The Court also had to consider whether the probative value of the evidence was outweighed by the danger of unfair prejudice, and whether MJP was bound by the conduct of his counsel in relation to the objection.

The Court reasoned that MJP was bound by the actions of his counsel, who had deferred an objection to the evidence but failed to pursue it. Furthermore, the Court found that the evidence was admissible in any event, implying that the objection, even if pursued, would not have succeeded. This conclusion suggests that the Court found the probative value of the admission to outweigh any potential for unfair prejudice, or that the evidence did not present a significant risk of unfair prejudice.

Consequently, the Court dismissed the appeal, finding that no miscarriage of justice had occurred.

Orders