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Otto v Tasmania

Otto v Tasmania

Case [2021] TASCCA 15 16 December 2021

Statutory Interpretation

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[2021] TASCCA 15

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Otto v Tasmania [2021] TASCCA 15
PARTIES:	OTTO, Margaret Anne
v
STATE OF TASMANIA
DIRECTOR OF PUBLIC PROSECUTIONS
v
OTTO, Margaret Anne
FILE NOS:	2685/2019
2709/2019
DELIVERED ON:	16 December 2021
DELIVERED AT:	Hobart
HEARING DATES:	28, 29 September 2020
JUDGMENT OF:	Brett J, Geason J, Porter AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to the evidence – Appeal allowed – Charge of murder based on instigation – Wholly circumstantial case – Where issue of appellant's state of mind in admitted discussions with perpetrator – Where issues of post-offence conduct in assisting perpetrator and lies – Not possible on the evidence to exclude reasonable hypothesis consistent with innocence – Substitution of verdict of guilty to being an accessory after the fact.

Libke v The Queen [2007] HCA 30, 230 CLR 559; M v The Queen (1994) 181 CLR 487, followed.
Pell v The Queen [2020] HCA 12, 94 ALJR 394; R v Baden-Clay [2016] HCA 35, 258 CLR 308, considered.
Richardson v The Queen [1978] Tas R 178, applied.
Criminal Code Act 1924 (Tas) ss 402(1), 403(2).
Aust Dig Criminal Law [3475]

Criminal Law – Appeal and new trial – Procedure – Miscellaneous matters – Tasmania – Whether appeal court should watch video records of police interview – Court requested to make general assessment of accused's demeanour – Court can view such material if proper forensic purpose identified – No such

purpose in this case.

Pell v The Queen [2020] HCA 12, 94 ALJR 394, followed.
CLC v The Queen [2015] NSWCCA 248; Jones v The Queen (1997) 191 CLR 439; Scott v The Queen [2020]
NSWCCA 81; SKA v The Queen [2011] HCA 13, 243 CLR, considered.
Aust Dig Criminal Law [3572]

REPRESENTATION:

Counsel:

Appellant/Respondent: A G Melick SC, C Graves, J Bloomfield
Respondent/Appellant: D G Coates SC, M Wilson

Solicitors:

Respondent/Appellant: Director of Public Prosecutions

Judgment Number:	[2021] TASCCA 15
Number of paragraphs:	258

Serial No 15/2021

File Nos 2685/2019

2709/2019

MARGARET ANNE OTTO v STATE OF TASMANIA

DIRECTOR OF PUBLIC PROSECUTIONS v MARGARET ANNE OTTO

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL BRETT J GEASON J PORTER AJ 16 December 2021
Orders of the Court
Appeal 2685/2019

1            Leave granted and appeal allowed.
2            Verdict of guilty of murder set aside and verdict of being an accessory after the fact to murder substituted.
3            Sentence for murder set aside.*

Appeal 2709/2019

1 Appeal by Director of Public Prosecutions against sentence dismissed.

*Note: On 17 December 2021, for the crime of being an accessory after the fact to murder, the Court recorded a conviction and sentenced the appellant to six years' imprisonment to commence on 30 May 2017. The Court ordered that she not be eligible for parole until she had served one half of…

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 Otto v Tasmania

Details

AGLC: Otto v Tasmania [2021] TASCCA 15
Case: [2021] TASCCA 15
Decision Date: 16 December 2021

CaseChat Overview and Summary

Otto v Tasmania concerned an appeal against a conviction for murder. The appellant, Otto, was charged with murder on the basis that he had instigated the commission of the offence by the perpetrator. The prosecution's case was entirely circumstantial, and a key issue revolved around Otto's state of mind during admitted discussions with the perpetrator. Further, the prosecution relied on Otto's post-offence conduct, including his assistance to the perpetrator and his subsequent lies, as evidence of guilt.

The Court of Criminal Appeal of Tasmania was required to determine whether the verdict of guilty of murder was unreasonable or insupportable having regard to the evidence. Specifically, the court had to consider whether, on the totality of the evidence, it was open to the jury to exclude any reasonable hypothesis consistent with Otto's innocence.

The court reasoned that while the circumstantial evidence, including Otto's post-offence conduct, might have suggested guilt, it did not exclude all reasonable hypotheses consistent with innocence. The admitted discussions, viewed in isolation or in conjunction with other evidence, did not definitively establish Otto's intention that the perpetrator should kill the victim. Consequently, the court found that the jury's verdict of guilty of murder could not stand. The court allowed the appeal, quashed the conviction for murder, and substituted a verdict of guilty of being an accessory after the fact.

Orders