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Shaw v Tasmania

Shaw v Tasmania

Case [2022] TASCCA 2 7 March 2022

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[2022] TASCCA 2

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Shaw v Tasmania [2022] TASCCA 2
PARTIES:	SHAW, David
v
STATE OF TASMANIA
FILE NO:	CCA 3353/2019
DELIVERED ON:	7 March 2022
DELIVERED AT:	Hobart
HEARING DATES:	6, 7 October 2020
JUDGMENT OF:	Blow CJ, Wood, Estcourt, Pearce and Brett JJ
CATCHWORDS:

Criminal Law – General matters – Ancillary liability – Complicity – Common purpose – Generally – Criminal Code (Tas) – Common law doctrine of joint criminal enterprise not applicable.

Criminal Code (Tas), s 3(1)(a).
L v Western Australia [2016] WASCA 101, 49 WAR 545, followed.
R v Webb; ex parte Attorney-General [1990] 2 Qd R 275, not followed.
Clarke v Tasmania [2013] TASCCA 11, 24 Tas R 384; Edwards v Tasmania [2016] TASCCA 7; R v Wyles, ex
parte Attorney-General [1977] Qd R 169; R v Palmer [2005] QCA 2; R v Quagliata [2019] QCA 45; Warren v
The Queen [1987] WAR 314; Lacco v Western Australia [2006] WASCA 152; Campbell v Western Australia
[2016] WASCA 156, 50 WAR 331; R v Beardy 2016 MBCA 68, discussed.
Aust Dig Criminal Law [2130]

Criminal Law – General matters – Ancillary liability – Complicity – Common purpose – Probable consequence

– Criminal Code (Tas) – Crime within the scope of the unlawful common purpose.

Criminal Code (Tas), s 4.
Ahsin v The Queen [2014] NZSC 153, [2015] 1 NZLR 493, followed.
R v Simpson (1988) 23 BCLR (2d) 145, 38 CCC (3d) 482, not followed.
Clayton v The Queen [2006] HCA 58, 81 ALJR 439; R v Keenan [2009] HCA 1, 236 CLR 397; Brennan v The
King (1936) 55 CLR 253; Darkan v The Queen [2006] HCA 34, 227 CLR 373, referred to.
Aust Dig Criminal Law [2132]
Criminal Law – Appeal and new trial – Miscarriage of justice – Dismissal of appeal where no substantial

miscarriage of justice – Application of proviso to particular cases – Arson – Joint trial of two accused – Evidence left open possibility appellant did not participate when crime committed – Judge erroneously directed jury on basis that common law doctrine of joint criminal enterprise was applicable – Evidence sufficient for conviction on statutory common purpose basis – Adequate directions to jury.

Criminal Code (Tas), s 402(2).
Kalbasi v Western Australia [2018] HCA 7, 264 CLR 62, applied.
Aust Dig Criminal Law [3465]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence

manifestly excessive or inadequate – Arson and attempting to dishonestly acquire a financial advantage – Insurance fraud by house owner – Cost of repairs over $260,000 – Sentence of two years' imprisonment with non-parole period of one year not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Appellant: G Stevens
Respondent: D G Coates SC, L A Mason SC

Solicitors:

Respondent:

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 Shaw v Tasmania

Details

AGLC: Shaw v Tasmania [2022] TASCCA 2
Case: [2022] TASCCA 2
Decision Date: 7 March 2022

CaseChat Overview and Summary

The case of *Shaw v Tasmania* concerned an appeal against a conviction for murder. The appellant, Shaw, was alleged to have been part of a joint criminal enterprise that resulted in the death of the victim. The appeal was heard by the Full Court of the Supreme Court of Tasmania, comprising Blow CJ, Wood, Estcourt, Pearce and Brett JJ.

The central legal issue before the Full Court was whether the common law doctrine of joint criminal enterprise, which allows for the imputation of intent from one participant to another in a shared criminal purpose, was applicable in Tasmania. This question arose in the context of the *Criminal Code* (Tas), which codifies criminal offences and defences. The Court was required to determine if the *Criminal Code* had abrogated or replaced the common law doctrine of joint criminal enterprise.

The Full Court held that the *Criminal Code* (Tas) did not permit the application of the common law doctrine of joint criminal enterprise. Their Honours reasoned that the Code provided a comprehensive framework for criminal liability, and that the absence of any express provision for joint criminal enterprise meant that such a doctrine was not available. Instead, liability for complicity in Tasmania was to be determined by the specific provisions of the *Criminal Code* relating to aiding, abetting, counselling, or procuring the commission of an offence.

Consequently, the Full Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders