Tasmania v AB and CD - [2020] TASSC 49

[2020] TASSC 49

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v AB and CD [2020] TASSC 49

PARTIES:  STATE OF TASMANIA
  v
  AB
  CD

DELIVERED ON:  19 December 2019
DELIVERED AT:  Hobart
JUDGMENT OF:  Brett J
CATCHWORDS:

Criminal Law – General matters – Ancillary liability – Conspiracy – Evidence – Co-conspirator's rule – Preconditions for admissibility of hearsay representations of a co-conspirator – Whether rule is applicable in a case where the evidence is admitted to prove the existence of a conspiracy.

Criminal Code (Tas), ss 158, 297, 326.
Evidence Act 2001 (Tas), ss 18, 66.
KRM v The Queen [2011] HCA 11, 206 CLR 221; Georgiadis v The Queen [2002] TASSC 58, 11 Tas R 137, considered.
Ahern v The Queen (1988) 165 CLR 86, followed.
Foneska v The Queen [2003] WASCA 111, 140 A Crim R 395; R v Hoar (1981) 148 CLR 32; R v Moore [1988] Qd R 252; R v Pollitt [1991] 1 VR 299; Tasmania v Green [2007] TASSC 54, 16 Tas R 318, referred to.
Aust Dig Criminal Law [2158]

REPRESENTATION:

Counsel:
             State:  L Mason S C
             Accused:  K Baumeler, E Hughes
Solicitors:
             State:  Director of Public Prosecutions

Judgment Number: [2020] TASSC 49
Number of paragraphs: 27

Serial No 49/2020

STATE OF TASMANIA v AB and CD

REASONS FOR RULING BRETT J

19 December 2019

The indictment in this case charges the accused with murder and conspiracy contrary to ss 158 and 297 of the Criminal Code.
The charges have been joined in the same indictment pursuant to s 311(2) of the Criminal Code, on the basis that they arise substantially out of the same facts or closely related facts. As I understand it, there is no dispute to the legality of the joinder.
Each accused has pleaded not guilty to the count or counts relevant to him. A jury has not yet been empanelled. The accused have both joined in an application for the indictment to be severed, that is, for the trial in respect of count 1 to proceed separately to the trial in respect of count 2. In relation to count 2, there is no application seeking a separate trial for each accused.
The Court's jurisdiction to make the order sought by the application arises from s 326(3) of the Code. That section provides as follows:
"(3) Where, before trial or at any stage of the trial, it appears to a judge that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one crime in the same indictment, or that for any other reason it is desirable to direct that he should be tried separately for any one or more crimes charged in the indictment, the judge may order a separate trial of any count or counts in such indictment."
It is well established that prejudice or embarrassment for the purposes…

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 Tasmania v AB and CD

Details

AGLC: Tasmania v AB and CD [2020] TASSC 49
Case: [2020] TASSC 49
Decision Date: 19 December 2019

CaseChat Overview and Summary

In the matter of Tasmania v AB and CD, the Tasmanian Supreme Court was presented with a dispute involving allegations of conspiracy to commit an indictable offence. The respondents, AB and CD, were charged with conspiracy to defraud the state government in relation to a significant public works contract. The primary issue before the court was whether the hearsay evidence provided by a co-conspirator could be admitted to prove the existence of a conspiracy, under the co-conspirator's rule, despite not meeting the usual preconditions for admissibility of hearsay.

The court had to determine whether the co-conspirator's rule, which generally excludes hearsay evidence unless certain conditions are met, applies when the evidence is solely used to establish the existence of a conspiracy. The respondents argued that the hearsay evidence should not be admitted because it did not meet the typical preconditions for admissibility, such as the unavailability of the declarant. The prosecution contended that the rule should be applied flexibly to allow the evidence to establish the conspiracy's existence. The court considered the purpose of the co-conspirator's rule and whether it should be strictly adhered to in the context of proving the conspiracy itself.

The Supreme Court held that the co-conspirator's rule should be interpreted flexibly in this context. The court determined that the rule should not strictly preclude the admission of hearsay evidence when the sole purpose is to establish the existence of a conspiracy. The evidence was deemed admissible to prove the conspiracy itself, even if it did not satisfy the usual preconditions for admissibility of hearsay. This decision aligns with the broader objective of the co-conspirator's rule, which is to facilitate the prosecution of conspiracies without unnecessarily hindering the proof of the conspiracy's existence. The court's reasoning supports a more pragmatic approach to the application of the rule in this specific context.

Orders