Ohl v Tasmania - [2019] TASSC 24

[2019] TASSC 24

COURT: SUPREME COURT OF TASMANIA

CITATION: Ohl v Tasmania [2019] TASSC 24

PARTIES:  OHL, Normal Edward
  v
  STATE OF TASMANIA

FILE NO:  3034/2016
DELIVERED ON:  4 June 2019
DELIVERED AT:  Hobart
HEARING DATES:  18 February, 7 March 2019
JUDGMENT OF:  Marshall AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Procedure – Notices of appeal – Time for appeal and extension thereof – Two years and seven months out of time – No reasonable explanation for delay of that magnitude – No merit in grounds of fresh evidence and incompetence of counsel.

Aust Dig Criminal Law [3555]

Criminal Law – Appeal and new trial – Particular grounds of appeal – Fresh evidence – Availability at trial – Evidence in possession of Crown not disclosed to defence – Fresh evidence said to be absence of tendered documents on a disc – Absence of material not sufficient to constitute fresh evidence – Not probable appeal would succeed.

Smillie v Tasmania [2017] TASCCA 26, considered.
Aust Dig Criminal Law [3498]

REPRESENTATION:

Counsel:
             Applicant:  G Melick SC
             Respondent:  J Hartnett
Solicitors:
             Applicant:  Ray Broomhall
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASSC 24
Number of paragraphs: 37

Serial No 24/2019
File No 3034/2016

NORMAN EDWARD OHL v STATE OF TASMANIA

REASONS FOR JUDGMENT MARSHALL AJ

4 June 2019

Mr Norman Ohl ("the applicant") has applied for an extension of time within which an application for leave to appeal against a conviction may be made pursuant to s 407(5) of the Criminal Code. The application may be heard by a single judge: see s 418(1)(a) of the Code.
On 17 February 2014, Tennent J imposed a conviction on the applicant on two counts of dishonestly acquiring a financial advantage contrary to s 252A of the Code. The applicant was sentenced to 14 months' imprisonment with effect from 14 February 2014, with six months suspended. The sentence was increased by the Court of Criminal Appeal (Director of Public Prosecutions (Acting) v Ohl [2014] TASCCA 4) to three years and three months' imprisonment with effect from 14 February 2014. Special leave to appeal from the judgment of the Court of Criminal Appeal was refused by the High Court on 9 April 2015: see Ohl v The Acting Director of Public Prosecutions [2015] HCASL 57.
The application for leave to appeal was filed on 18 October 2016. This was two years, seven months and two days after the expiry of the time limited to appeal from his conviction: s 407(1). Mr Ohl understood he had 14 days to appeal his conviction, but accepted advice from his then lawyers that he had no grounds of appeal. He said that he knew at the time of his conviction that five documents relied on by the prosecution to convict him were forgeries. He also said that he knew at the time that his counsel at the trial was incompetent.
The principles to be…

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 [2019] TASSC 24
Case: [2019] TASSC 24
Decision Date: 4 June 2019

CaseChat Overview and Summary

In Ohl v Tasmania, the respondent, who was the Attorney General of Tasmania, sought to appeal against a decision from the Supreme Court of Tasmania. The Supreme Court had found the appellant, Ohl, guilty of various offences under the Crimes Act 1914. The appeal was lodged two years and seven months after the original conviction, far beyond the statutory time limit for such appeals. The primary issue for the High Court was whether the appeal could be heard despite the significant delay, and if the appellant could provide a reasonable explanation for the delay or if there were any merits in the claims of fresh evidence or incompetence of counsel.

The court considered the legal principles surrounding the time limits for appeals and the criteria for extending such limits. It was established that the appellant had not provided any reasonable explanation for the substantial delay in lodging the appeal. Additionally, the court found no merit in the appellant's claims regarding fresh evidence or the alleged incompetence of his original counsel. The appellant had failed to demonstrate how the alleged fresh evidence would have affected the outcome of the trial or how the alleged incompetence of counsel prejudiced his defence.

Consequently, the court held that the appeal was out of time and did not meet the criteria for an extension of time. The court emphasised the importance of adhering to statutory time limits for appeals and the need for a reasonable explanation when seeking an extension. The appeal was dismissed due to the significant delay without a reasonable explanation and the lack of merit in the claims of fresh evidence and incompetence of counsel. The final orders were that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal.

Orders