R v Ferguson - [2000] TASSC 151

[2000] TASSC 151

CITATION: R v Ferguson [2000] TASSC 151

PARTIES:  R
  v
  FERGUSON, John Henry

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  114/2000
DELIVERED ON:  1 November 2000
DELIVERED AT:  Hobart
HEARING DATES:  23 - 26 October, 1 November 2000
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Course of evidence, statements and addresses - Addresses - Final address of counsel for Crown - Generally - Right of Crown to address in reply - Whether evidence adduced for accused person - Documents tendered by defence in cross-examination.

Carter v R (1997) 19 WAR 8, followed.
Criminal Code (Tas), s371(d).
Aust Dig Criminal Law [775]

REPRESENTATION:

Counsel:
             Crown:  C J Rheinberger
             Accused:  M J Brett
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  Clarke & Gee

Judgment Number: [2000] TASSC 151
Number of Paragraphs: 15

Serial No 151/2000
File No 114/2000

THE QUEEN v JOHN HENRY FERGUSON

REASONS FOR RULING BLOW J

1 November 2000

On 25 October 2000, I gave a ruling during the trial of the accused that his counsel should make his closing address to the jury before that of counsel for the Crown. I said I would give my reasons at a later date. These are my reasons for that ruling.

During the cross-examination of the principal Crown witness, counsel for the accused produced and tendered a letter written by that witness to the accused. The accused gave evidence himself, but did not adduce any other evidence. At the conclusion of his evidence, each counsel submitted that the other should make the first closing address to the jury.

The Criminal Code, s371, provides as follows:

"371 ¾ The following rules shall apply to the proceedings upon the trial of an indictment: ¾
…
(b) at the close of the evidence for the prosecution an officer of the court shall ask the accused person whether he intends to adduce evidence in his defence;
(c) if the accused person has no witnesses to call he may himself give evidence on oath (but by so doing shall not be deemed to adduce evidence), and thereupon, or if he does not give evidence ¾
(i)if he has no counsel, he may address the jury in his own defence; or
(ii)if he has counsel, the counsel for the Crown may, if he thinks it a proper case in which so to do, make a second speech summing up the Crown's evidence, and commenting on the evidence of the accused, if any; and the counsel for the accused may then address the jury on his behalf;

(d) if the accused person adduces evidence ¾
(i)upon the close of the evidence for the Crown he or his counsel may address the jury for the purpose of opening the case for his defence, and call his evidence, giving his own evidence first if he desires to give evidence personally;
(ii)after the close of such evidence he, or his counsel, may address the…

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 Ferguson

Details

AGLC: R v Ferguson [2000] TASSC 151
Case: [2000] TASSC 151
Decision Date: 1 November 2000

CaseChat Overview and Summary

The Supreme Court of Tasmania heard a case concerning the order of closing addresses in a criminal trial, specifically addressing the situation where a defence exhibit is tendered during the cross-examination of a prosecution witness. The accused, John Henry Ferguson, was on trial, and his counsel, Mr Brett, argued that the tendering of a document during cross-examination should not affect the order of closing addresses. The Crown's counsel, Mr Rheinberger, contended that such an act constituted the adducing of evidence, thereby altering the sequence in which the closing addresses should be made. The presiding judge, Blow J, examined the statutory provisions and case law to determine the correct interpretation and application of the relevant sections of the Criminal Code.

The central legal issue revolved around the interpretation of section 371(d) of the Criminal Code, which stipulates the order of closing addresses when an accused person adduces evidence. The court considered whether the term "adducing evidence" should be narrowly construed to include only the calling of witnesses, or whether it should be more broadly interpreted to encompass the tendering of exhibits. The court also considered the historical context and the legislative intent behind the statute, referencing prior case law and statutes from both Tasmania and Western Australia. The decision in Carter v R was pivotal, establishing that the tendering of an exhibit during cross-examination constituted the adducing of evidence, thereby affecting the order of closing addresses.

In his ruling, Blow J concluded that the tendering of a defence exhibit during the cross-examination of a prosecution witness constituted the adducing of evidence under section 371(d). Consequently, the accused's counsel was required to address the jury before the Crown's counsel. The judge rejected the argument that the statutory provisions should be narrowly interpreted to exclude the tendering of exhibits, adhering instead to the broader interpretation supported by the case law. The judge noted that if the Parliament had intended to alter the existing practice, it would have done so explicitly. The ruling emphasized the importance of following established practice unless there is clear evidence of a legislative intent to change it.

The court did not find it appropriate to exercise its discretion to depart from the statutory order of addresses in this case. The letter tendered by the accused's counsel was significant, potentially impacting the credibility of the prosecution's key witness. Despite the accused's counsel's expectation and subsequent research suggesting an argument to the contrary, the judge upheld the established rule, ensuring that the accused's counsel addressed the jury first.

Orders