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Owen v The Queen

Owen v The Queen

Case [2001] TASSC 79 20 July 2001

Appeal

Jurisdiction

Admissibility of Evidence

Miscarriage of Justice

Criminal Law

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[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…

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 Owen v The Queen

Details

AGLC: Owen v The Queen [2001] TASSC 79
Case: [2001] TASSC 79
Decision Date: 20 July 2001

CaseChat Overview and Summary

Gregory Meredith Owen has appealed against three convictions of perverting the course of justice contrary to the Criminal Code, s105. Owen was acquitted on four of the seven charges brought against him. The charges arose from a police visit to Owen's property where cannabis, an unregistered firearm, and ammunition were found. Owen denied ownership. The trial judge ruled that there was no case to answer on three of the charges, and directed that verdicts of not guilty be returned in relation to them. The jury acquitted Owen on count 1 but convicted him on counts 2, 3 and 4. Owen's appeal was against the convictions on counts 2, 3 and 4. The Court of Criminal Appeal dismissed the appeal. The appeal court held that the trial judge would have been justified in discharging the jury and that the judge had erred in law in not doing so. However, the appeal was dismissed because it was considered that no substantial miscarriage of justice had occurred. The jury's acquittal on count 1 indicated that the jury had been able to follow the trial judge's direction to ignore the prejudicial evidence. The evidence against Owen on counts 2, 3 and 4 was overwhelming. The appeal court held that a hypothetical reasonable jury, acting properly, on a proper direction, and on admissible evidence only, would, without doubt, have convicted Owen.

Orders