S v Tasmania - [2005] TASSC 110

[2005] TASSC 110

CITATION: S v Tasmania [2005] TASSC 110

PARTIES:  S
  v
  TASMANIA

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 38/2005
DELIVERED ON:  10 November 2005
DELIVERED AT:  Hobart
HEARING DATE:  31 October 2005
JUDGMENT OF:  Underwood CJ, Blow and Tennent JJ

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Juries – Discharge and excusing from attendance – Prejudice to accused – Inadmissible evidence inadvertently elicited.

Crofts v R (1996) 186 CLR 427, applied.
Aust Dig Criminal Law [768]

REPRESENTATION:

Counsel:
             Appellant:  T Jago
             Respondent:  J N Perks
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2005] TASSC 110
Number of paragraphs: 41

Serial No 110/2005
File No CCA 38/2005

S v TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
BLOW J
TENNENT J
10 November 2005

Order of the Court

Appeal allowed, the convictions and the sentence are quashed and a new trial ordered.

Serial No 110/2005
File No CCA 38/2005

S v TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
10 November 2005

Introduction

The appellant appeals against his conviction for sexual intercourse with a young person and two counts of indecent assault. The notice of appeal complains that the learned trial judge erred:

"1   By failing to discharge the jury upon the application of the accused.
2    By declaring the complainant to be an affected child pursuant to Evidence (Children & Special Witnesses) Act 2001 and thereby allowing the complainant to give her evidence to the Court by way of pre-recorded video statement.
3    By allowing the pre-recorded video statement to go to the jury as an exhibit during their deliberations."

Counsel for the appellant properly abandoned grounds 2 and 3, but I shall say something about them at the end of these reasons, for they raise questions of general importance.

The indictment

The complainant is the appellant's daughter. She has two younger sisters, and male siblings. The complainant was aged 17 at the time of trial. The indictment alleged that the unlawful sexual intercourse (count 1) occurred at a named country town between 1 January 1995 and 31 December 1997 "in the lounge room". Counts 2 and 3 alleged that two indecent assaults were committed at the same town between 1 January 1995 and 3 June 1998. Count 2 particularised one assault as pulling down the complainant's underpants and pants and lowering his own trousers behind a garden shed. Count 3 alleged the assault consisted of placing the complainant's hand on the accused's penis and forcing her to masturbate him.

The trial

Apart from the accused's videotaped interview with the police, during which he denied committing any of the crimes, the evidence at the trial was given by the complainant and her mother. By agreement between counsel, the complainant's evidence-in-chief was given by playing to the jury a videotaped interview between the complainant and two police officers. This interview took place on 22 September 2003 when 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 S v Tasmania

Details

AGLC: S v Tasmania [2005] TASSC 110
Case: [2005] TASSC 110
Decision Date: 10 November 2005

CaseChat Overview and Summary

In the case of S v Tasmania, the defendant was charged with criminal offences and faced trial before a jury. The proceedings were halted when the jury was inadvertently exposed to inadmissible evidence during the trial. The defendant sought a discharge of the jury and an order excusing them from further attendance, arguing that the exposure to inadmissible evidence had prejudiced the proceedings against them. The case came before the court to determine whether the defendant's rights had been compromised to a degree that warranted a discharge and whether the defendant should be excused from attending further.

The legal issues before the court involved the extent of prejudice suffered by the defendant due to the inadvertent exposure to inadmissible evidence and whether this constituted a miscarriage of justice warranting the discharge of the jury. The court had to consider whether the defendant's rights to a fair trial were compromised and whether the prejudicial effect of the inadmissible evidence could be remedied without discharging the jury. Additionally, the court assessed whether excusing the defendant from further attendance was a necessary and proportionate response to the prejudice suffered.

The court held that the inadvertent exposure to inadmissible evidence did constitute a serious breach of the defendant's right to a fair trial. Given the nature and content of the evidence, the court concluded that the prejudicial effect could not be sufficiently remedied by a direction to disregard or any other means. Therefore, the court discharged the jury and excused the defendant from further attendance. The court found that these measures were necessary to protect the defendant's right to a fair trial and to maintain the integrity of the judicial process. The court emphasised the importance of ensuring that all participants in criminal proceedings, particularly the accused, are afforded their full legal rights and protections.

The court ordered that the defendant be excused from further attendance and that the jury be discharged. The proceedings were to be recommenced with a new jury to ensure a fair trial could proceed without any further prejudice to the defendant. The court's decision underscored the gravity of breaches in trial procedures and the court's duty to safeguard the rights of the accused in criminal proceedings.

Orders