R v Evans, James Maxwell - [1999] TASSC 25

[1999] TASSC 25

PARTIES:  R
  v
  EVANS, James Maxwell

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 90/1998
DELIVERED:  12 March 1999
HEARING DATE/S:  2 March 1999
JUDGMENT OF:  Cox CJ, Wright J, Slicer J

CATCHWORDS:

Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Other matters - Tasmania - Crime(s) of violence - "Dangerous Criminal" declaration - Whether offender convicted of a crime involving violence or an element of violence - Whether crimes of rape and indecent assault are by their nature crimes of violence.

Sentencing Act 1997 (Tas), s19.
R v Sparkes 73/1997; R v McCrossen (1991) Tas R 1; R vHueston (1995) 5 Tas R 210; R v Gill 52/1989, followed.
R v Butcher [1986] VR 43; Brown v R 69/1987; R v England 42/1989; Criminal Injuries Board, Ex p Clowes (DC) [1977] 1 WLR 1353, considered.
Aust Dig Criminal Law [911]

REPRESENTATION:

Counsel:
             Appellant:  D J Bugg QC
             Respondent:  T J Ellis
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  G A Richardson

Judgment category classification:
Judgment ID Number: [1999] TASSC 25
Number of pages: 10

Serial No 25/1999
File No CCA 90/1998

THE QUEEN v JAMES MAXWELL EVANS

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
WRIGHT J
SLICER J
12 March 1999

Orders of the Court:

Appeal allowed.

Application for declaration referred back to Crawford J for determination.

Serial No 25/1999
File No CCA 90/1998

THE QUEEN v JAMES MAXWELL EVANS

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
12 March 1999

I have had the advantage of reading the Reasons for Judgment prepared by Wright J. I agree with them and with the orders which he proposes. There is nothing I can usefully add.

File No CCA 90/1998

THE QUEEN v JAMES MAXWELL EVANS

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

WRIGHT J
12 March 1999

The respondent, James Maxwell Evans, was convicted by a jury of one count of attempted rape in August 1998. This crime had been committed twelve weeks after his release on parole after serving part of an 8½ year sentence of imprisonment in respect of twelve counts of rape and two counts of indecent assault, of which he had been convicted in April 1992. Upon his conviction of attempted rape in August last year, the Crown applied that the respondent be declared a dangerous criminal, pursuant to the provisions of the Sentencing Act 1997, s19 ("the Act"). Section 19(1) and (2) are in the following terms:
"19 ¾ (1) A judge before whom an offender is convicted or brought up for sentence after being convicted may declare the offender to be a dangerous criminal if ¾
(a)   the offender has been convicted for a crime involving violence or an element of violence; and
(b)   the offender has at least one previous conviction for a crime involving violence or an element of violence; and
(c)   the offender has apparently attained the age 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 R v Evans, James Maxwell

Details

AGLC: R v Evans, James Maxwell [1999] TASSC 25
Case: [1999] TASSC 25
Decision Date: 12 March 1999

CaseChat Overview and Summary

In the Court of Criminal Appeal of Tasmania, the case of R v Evans, James Maxwell was heard on 2 March 1999, with the reasons for judgment delivered on 12 March 1999. The respondent, James Maxwell Evans, was convicted of attempted rape in August 1998, following his release from an 8½ year sentence for twelve counts of rape and two counts of indecent assault. The Crown sought a declaration that Evans be considered a dangerous criminal under the Sentencing Act 1997 (Tas), s19. The primary legal issue was whether rape and indecent assault are by their nature crimes of violence, and whether Evans had previous convictions for crimes involving violence or an element of violence. The Court found that while attempted rape is a crime involving violence, it could not be determined whether Evans' previous convictions for rape and indecent assault involved violence or an element of violence, as the sentencing judge did not make specific findings on this matter. The Court held that rape always involves violence in the relevant sense, as it is an act of violation without consent, and that indecent assault inherently involves violence due to the absence of consent by the victim. Consequently, the appeal was allowed, and the application for a declaration was referred back to the sentencing judge for further consideration.

Orders