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Tasmania v C

Tasmania v C

Case [2022] TASSC 23 25 November 2020

Plea in bar

Plea of autrefois acquit or autrefois convict

Criminal Law

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[2022] TASSC 23

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v C [2022] TASSC 23

PARTIES:  STATE OF TASMANIA
  v
  C, H L

FILE NO:  999/2019
DELIVERED ON:  25 November 2020
DATE PUBLISHED:  13 April 2022
DELIVERED AT:  Hobart
HEARING DATES:  2 July 2020
JUDGMENT OF:  Brett J

CATCHWORDS:

Procedure – Pleas – Plea in bar – Plea of autrefois acquit or autrefois convict – Whether valid plea after dismissal of charge – Magistrate dismissing a complaint does not amount to an acquittal – Indictable crime commenced by the filing of an indictment in the Supreme Court – Accused not in jeopardy of conviction.

Aust Dig Criminal Law [3101]

Procedure – Adjournment, stay of proceedings or restraining proceedings – Stay of proceedings – Abuse of process – Circumstances and considerations to a Court in deciding whether proceeding should be stayed – Consequences of delay – Application for a permanent stay of proceedings refused.

Acts Interpretation Act 1931 (Tas), s 38.
Criminal Code (Tas), ss 7, 310(3), 351(6), 355(1)(b)(v) and 361.
Justices Act 1959 (Tas), ss 56A, 59 (1) (f) and 62.
Gilham v The Queen [2007] NSWCCA 323, 73 NSWLR 308; Island Maritime Limited v Filipowski [2006] HCA 30, 226 CLR 328; Jago v District Court of New South Wales (1989) 168 CLR 23; Maxwell v Horten [2011] TASMC 25; Neasey v Strickland (1995) 5 Tas R 228; R v Carroll (2002) 213 CLR 635; R v Dabhade [1993] QB 329; R v Hill (1982) 7 A Crim R 161; R v McConnon [1955] Tas R 1; Rogers v The Queen (1994) 181 CLR 251, referred to.

Aust Dig Criminal Law [3054]

REPRESENTATION:

Counsel:
             Appellant:  D G Coates SC
             Accused:  M Flanagan
Solicitors:
             Appellant:  Director of Public Prosecutions
             Accused:  Murdoch Clarke

Judgment Number: [2022] TASSC 23
Number of paragraphs: 30

Serial No 23/2022
File No 999/2019

TASMANIA v H L C

REASONS FOR RULING BRETT J

25 November 2020

The accused has been charged on indictment with one count of rape. The allegation is that on or about 19 August 1993, he had vaginal sexual intercourse with the complainant without her consent. He has pleaded to the indictment pursuant to s 355(1)(b)(v) of the Criminal Code that he has already been acquitted summarily of an offence in respect of which he might have been indicted upon the charge contained in the current indictment. This plea in bar asserts the principle autrefois acquit.
Section 361 of the Code provides that in the case of such a plea, the judge shall determine it in such manner and upon such evidence "as he thinks fit". A discretion is afforded to the trial judge to order that any question of fact necessary for that determination be tried by a jury. The parties have agreed in this case that I should determine the plea on the basis of the Crown papers, together with court records relating…

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 C

Details

AGLC: Tasmania v C [2022] TASSC 23
Case: [2022] TASSC 23
Decision Date: 25 November 2020

CaseChat Overview and Summary

Tasmania brought a case against C in the Supreme Court, alleging various criminal charges. C sought to have the charges dismissed on the basis that he had previously been acquitted of similar charges in a magistrate's court. The legal issue the court had to resolve was whether the plea of autrefois acquit, or previously acquitted, was valid when the earlier charge was dismissed by a magistrate rather than following a trial.

The court held that the dismissal of a complaint by a magistrate does not equate to an acquittal. In Australia, an indictable offence commences when an indictment is filed in the Supreme Court, and until that point, the accused is not in jeopardy of conviction. Therefore, a dismissal by a magistrate does not bar a subsequent prosecution by the Crown. The court ruled that the plea of autrefois acquit was not valid in this case because the earlier dismissal did not constitute an acquittal. Consequently, the court dismissed C's plea in bar, allowing the charges to proceed.

Orders