R v Devine, Robert Joseph - [1998] TASSC 42

42/1998

PARTIES:  R
  v
  DEVINE, Robert Joseph

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  14/1998
DELIVERED:  22 April 1998
HEARING DATE/S:  20, 21, 22 April 1998
RULING OF:  Slicer J

Edited edition of ruling delivered orally.

CATCHWORDS:

Criminal Law - Evidence - Matters relating to proof - Miscellaneous matters - Alibi - Presumption of regularity - Whether inferential evidence constitutes alibi.

R v Gill A4/1974; R v Johnston A62/1973, followed.
Aust Dig Criminal Law [460]

REPRESENTATION:

Counsel:
           Crown:  M A Stoddart
           Accused:  S C Chopping
Solicitors:
           Crown:  Director of Public Prosecutions
           Accused:  Steven Chopping

Judgment category classification:
Court Computer Code:
Judgment ID Number:  42/1998
Number of pages:  3

Serial No 42/1998
File No 14/1998

THE QUEEN v ROBERT JOSEPH DEVINE

RULING DURING THE COURSE OF TRIAL SLICER J

(DELIVERED ORALLY) 22 April 1998

The accused seeks to lead evidence claimed by the prosecution to be alibi evidence despite not having given notice in accordance with the Criminal Code, s368A. He contends that no such notice is required since the nature of the evidence lacks the precision necessary for the characterisation required of alibi evidence.
There is evidence that, at the time of his committal, the accused was advised by the Committee Magistrate of this statutory requirement to provide notice. In any event, the Court is entitled to rely on the presumption of regularity as provided by the Justices Act 1959, s56A(9). See R v Gill A4/1974 and R v Johnston A62/1973.
The case against the accused is that in the early hours of the morning, 16 April, he was found hiding in the yard of a property at Lawitta Road, Magra. Police had been summoned to the general area at about 1.30am and soon thereafter located the accused. The motor vehicle said to be owned by the wife of the accused was parked in front of the premises and a quantity of stolen plants was found in that vehicle. Three other items, a jacket, blanket, and vehicle pump, were found nearby. Those items had been taken from a vehicle parked at a nearby house. The plants were taken from that house and the one at which the accused was found. The following morning a three piece bird bath and other plants, also stolen from the second house, were discovered alongside the roadway but some little distance from and in the other direction to the two houses. The location of the recovered items and the necessity to locate, dig up, remove and collect the various items indicate that some considerable time had been required in the commission of the criminal conduct. Police officers and a householder claimed in evidence that the accused had admitted responsibility and that he had collected the items in order to "set up" another nearby resident, presumably as retaliation for some other perceived injury inflicted by that person on the accused.
Because the opening statement made by counsel for the accused did not afford sufficient precision to the evidence sought to…

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 R v Devine, Robert Joseph

Details

AGLC: R v Devine, Robert Joseph [1998] TASSC 42
Case: [1998] TASSC 42
Decision Date: 22 April 1998

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of The Queen v Robert Joseph Devine involved a criminal trial where the accused sought to present evidence that he claimed was not of the nature of an alibi. The Crown argued that the accused should have given notice of the intended evidence in accordance with the Criminal Code, section 368A, which governs the presentation of alibi evidence in criminal trials. The key legal issue was whether the evidence the accused sought to present was of a nature that required him to give notice to the Crown as per the statutory requirement.

The court determined that the statutory definition of "evidence in support of an alibi" included evidence tending to show that the accused was present at a particular place or area at a particular time, which rendered it impossible, improbable, or unlikely that he could have been at the place where the offence was alleged to have been committed at the time of its commission. The court held that the evidence presented by the accused, specifically from Mandy Shea, was of a nature that could be characterised as alibi evidence as it suggested that the accused could not have been at the scene in sufficient time to commit the crimes. The court found that the accused had not given the required notice and that such evidence could not be admitted without it, whereas the evidence from Rachel Fisher and Peter Vernon, which did not directly relate to the accused’s whereabouts, could be admitted.

The court concluded that the evidence from Shea was inadmissible due to the lack of notice, while the evidence from Fisher and potentially Vernon could be admitted as it did not directly challenge the accused's presence at the scene. This decision underscored the importance of adhering to statutory requirements for presenting alibi evidence and highlighted the need for clarity in the nature of evidence presented in criminal trials.

Orders