Rice v McDonald - [2000] TASSC 70

[2000] TASSC 70

CITATION: Rice v McDonald [2000] TASSC 70

PARTIES:  RICE, Tristan Margaret
  v
  McDONALD, Scott Raymond

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 66/1999
DELIVERED ON:  21 June 2000
DELIVERED AT:  Hobart
HEARING DATES:  18 May 2000
JUDGMENT OF:  Slicer J

CATCHWORDS:

Magistrates - Appeal from and control over magistrates - Tasmania - Notice to review - The hearing - Generally - Sufficiency of evidence - Question for court.
Aust Dig Magistrates [272]
Criminal Law - General matters - Criminal liability and capacity - Defence matters - Duress - Criminal Code (Tas) - Common law - Difference between the Criminal Code and the common law.

Aust Dig Criminal Law [54]

Criminal Code 1924 (Tas), s234
R v Hudson [1971] 2 QB 202, Graham v R (1982) 74 Cr App R 235, considered.
Gow v Davies (1992) Tas R 1; Lynch v DPP for Northern Ireland [1975] AC 653; R v Howe & Others [1987] AC 417; Harding v R [1976] VR 129; R v Pickard [1959] Qd R 475; Bowen v R (1996) 2 Cr App R 157, referred to.

REPRESENTATION:

Counsel:
             Appellant:  C Mackie
             Respondent:  F C Neasey
Solicitors:
             Appellant:  Legal Aid Commission
             Respondent:  Director of Public Prosecutions

Judgment Number: [2000] TASSC 70
Number of Paragraphs: 34

Serial No 70/2000
File No LCA 66/1999

TRISTAN MARGARET RICE
v
SCOTT RAYMOND McDONALD v

REASONS FOR JUDGMENT SLICER J

21 June 2000

The applicant has been convicted of the crime of stealing and of the offence of making a false report to police contrary to the Criminal Code, s234 and the Police Offences Act 1935, s44A(1). She gave evidence on the hearing of the complaints in a Court of Petty Sessions that at the relevant times she had acted out of fear she would suffer grievous bodily harm if she did not follow the demands of her partner. In doing so, she established an evidentiary basis requiring consideration of the issue of compulsion in accordance with the Code, s20 and duress in accordance with the principles of common law. The learned magistrate found he was satisfied beyond reasonable doubt that the applicant had not acted under either of the elements.

The applicant, then aged 18, had commenced a relationship with one Steven Robertson at Melbourne in June 1996 whilst Robertson was on parole. He was the father of her child aged two, and one enciente at the time of the hearing. Robertson was violent and frequently assaulted the applicant viciously and without cause. The first assault in about September 1996:

"… resulted in a miscarriage of a child, he had done a break in, from what I'd gathered he'd been doing, he'd done a break in in Melbourne, he'd come back, couldn't find something that he taken with him and hit me in the stomach, probably about two or three times. The next day I was actually in the - the next night I was actually in a…

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 Rice v McDonald

Details

AGLC: Rice v McDonald [2000] TASSC 70
Case: [2000] TASSC 70
Decision Date: 21 June 2000

CaseChat Overview and Summary

Rice v McDonald is an appeal by the applicant, Tristan Margaret Rice, against her conviction in a Court of Petty Sessions for stealing and for making a false report to police. The applicant's partner, Steven Robertson, had a history of violence against her. Following the sale of a television, the applicant reported the television stolen and gave evidence to police that the sale was legitimate. The applicant gave evidence that she had acted under compulsion and duress. The learned magistrate found that the applicant had not acted under compulsion or duress. The applicant appealed on the basis that the learned magistrate had erred in law in his consideration of the defences of compulsion and duress. The court found that the learned magistrate had erred in law and quashed the convictions. The learned magistrate had erred by failing to take into account the subjective characteristics of the applicant in considering whether she had acted under duress. The applicant's evidence was accepted as credible and was supported by medical records and expert evidence. The court found that the applicant had been subjected to prolonged violence and threats of violence. The applicant had been dominated by Robertson and was unable to seek help from others. The applicant had acted under duress and compulsion.

Orders