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Ohl v Tasmania

Ohl v Tasmania

Case [2021] TASCCA 1 21 January 2021

Statutory Interpretation

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[2021] TASCCA 1

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Ohl v Tasmania [2021] TASCCA 1
PARTIES:	OHL, Norman Edward
v
STATE OF TASMANIA
FILE NO:	1491/2019
DELIVERED ON:	21 January 2021
DELIVERED AT:	Hobart
HEARING DATE:	12 March, 1 May, 19 May 2020
JUDGMENT OF:	Wood J, Brett J, Martin AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Procedure – Notices of appeal – Time for appeal and extension thereof

– Application for an extension of time for leave to appeal – No merit in grounds of fresh evidence and

incompetence of counsel.

Criminal Code (Tas), s 418(2). Aust Dig Criminal Law [3555]

Criminal Law – Appeal and new trial – Particular grounds of appeal – Fresh evidence – Availability at trial, materiality and cogency – Availability at trial – Evidence in possession of Crown not disclosed to defence – Fresh evidence said to be disclosure that key documents not stored on hard-drive – Contents constructively available – Marginal relevance – Disclosure highly unlikely to be exculpatory – Evidence

on application does not show that documents were not on hard drive.

R v Abou-Chabake [2004] NSWCCA 356, 149 A Crim R 417, considered.
Aust Dig Criminal Law [3498]

Criminal Law – Appeal and new trial – Particular grounds of appeal – Conduct of defence counsel – Where defence counsel said to have failed to abide by instructions – Counsel did not obtain a copy of CD of downloaded contents of hard drive disclosed by Crown and examine it – Not warranted given defence

case and instructions provided by the applicant.

R v Birks (1990) 19 NSWLR 677, referred to.

Aust Dig Criminal Law [3515]

REPRESENTATION:

Counsel:

Applicant: G Melick SC and R Broomhall
Respondent: J Hartnett SC

Solicitors:

Respondent: Director of Public Prosecutions

Judgment Number:	[2021] TASCCA 1
Number of paragraphs:	149

Serial No 1/2021

File No 1491/2019

NORMAN EDWARD OHL v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL WOOD J BRETT J MARTIN AJ 21 January 2021
Order of the Court:

The application for an extension of time for leave to appeal, filed 18 June 2019 and described as a "notice of appeal", is dismissed.

Serial No 1/2021

File No 1491/2019

NORMAN EDWARD OHL v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL
WOOD J
21 January 2021

1 On 4 June 2019 Marshall AJ refused an application for an extension of the time in which an application may be made for leave to appeal to this Court with regard to the applicant's conviction. After a trial the jury had found him guilty of two counts of dishonestly obtaining a financial advantage. The application to extend time, dated 18 October 2016, annexed an application for leave to appeal and the proposed grounds of appeal. Those grounds were the focus of the hearing before Marshall AJ. Once an application for an extension of time is refused by a…

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 Ohl v Tasmania

Details

AGLC: Ohl v Tasmania [2021] TASCCA 1
Case: [2021] TASCCA 1
Decision Date: 21 January 2021

CaseChat Overview and Summary

The Supreme Court of Tasmania, constituted by Wood J, Brett J, and Martin AJ, considered an application by Mr. Ohl for an extension of time to seek leave to appeal against his conviction. The core of the dispute concerned Mr. Ohl's assertion that he had grounds for appeal based on fresh evidence and alleged misdirection by the trial judge.

The Court was required to determine whether to grant Mr. Ohl an extension of time to file his appeal. This involved assessing the merits of the proposed grounds of appeal, specifically the alleged fresh evidence and the claim of misdirection, to ascertain if there was a reasonably arguable case that would justify permitting the appeal to proceed outside the usual time limits.

The Court found that the grounds of appeal, as presented, lacked sufficient merit to warrant an extension of time. The alleged fresh evidence was not considered to be of a nature that could have affected the outcome of the trial, and the arguments regarding misdirection were not persuasive. Consequently, the Court concluded that it was not in the interests of justice to grant the extension.

The application for an extension of time was dismissed.

Orders