[2001] TASSC 79
CITATION: Owen v R [2001] TASSC 79
PARTIES: OWEN, Gregory Meredith
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 18/2000
DELIVERED ON: 20 July 2001
DELIVERED AT: Hobart
HEARING DATES: 21 May 2001
JUDGMENT OF: Slicer, Evans and Blow JJ
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Interference with discretion or finding of judge - Particular matters - Control of proceedings - Discharge of jury - Inadmissible evidence - Whether substantial miscarriage of justice.
Criminal Code 1924 (Tas), s402(2).
Crofts v R (1996) 186 CLR 427, considered.
Aust Dig Criminal Law [946]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: M A Stoddart
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions
Judgment Number: [2001] TASSC 79
Number of Paragraphs: 36
Serial No 79/2001
File No CCA 18/2000
GREGORY MEREDITH OWEN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
EVANS J
BLOW J
20 July 2001
Order of the Court
Appeal dismissed.
Serial No 79/2001
File No CCA 18/2000
GREGORY MEREDITH OWEN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
20 July 2001
The circumstances giving rise to this appeal are adequately stated in the reasons for judgment of Blow J and do not require repetition.
There were reasons which would have justified the discharge of the jury and the learned trial judge would have been justified in so doing (Crofts v R (1996) 186 CLR 427). The decision by the prosecution to lead prejudicial evidence without seeking a preliminary ruling, and the repetition of such evidence in a videotaped intercepted conversation, were matters which permitted discharge. Those grounds of appeal are made out.
However, this is a case which warrants the application of the proviso, an outcome permitted by the Criminal Code, s402(2). The verdict of the jury shows that the jury heeded the directions of the learned primary judge to ignore the offending material. That is evidenced by the verdicts of acquittal in relation to some of the counts. That factor, in itself, would not justify the application of the proviso. The appellant gave evidence at his trial. In relation to the offending material he responded to questions in the following manner:
"Okay. Now I just want to take you to well ¾ we have obviously heard your voice and seen your picture in ¾ on a video that has been shown in this court ¾ There's no argument with any of those things being said or that's the way it happened? … No that's the way it happened.
Okay, why did you do that? … Because I wasn't guilty of the plants. They were Paul Duke's. Someone offered to help me so I went for it. Why should I go to Court for something I hadn't done? Surely people have principles? I didn't know what to do. Paul wouldn't go to Court. Even the day I went to Court he…
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