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Tasmania v Cooke

Tasmania v Cooke

Case [2023] TASSC 32 17 March 2023

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[2023] TASSC 32

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Tasmania v Cooke [2023] TASSC 32
PARTIES:	STATE OF TASMANIA
v
COOKE, Zachary Anthony
FILE NO:	267/2020
DELIVERED ON:	17 March 2023
DELIVERED AT:	Hobart
HEARING DATES:	30, 31 January, 1 February 2023
JUDGMENT OF:	Wood J
CATCHWORDS:

Criminal law – Procedure – Adjournment, stay of proceedings or order restraining proceedings – Stay of proceedings – Abuse of process – In general – Fair trial – Fundamental defect – Audio visual record of police interview with accused lost and unable to be recovered – Exculpatory statements that he acted in self-defence – Loss of record results in substantial disadvantage to defence – Ameliorated by evidence of accused's statements and directions to jury.

Criminal Code 1924 (Tas), s 46.
Jago v District Court of New South Wales (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378,
applied.
Police v McLeod [2011] SASC 160; Police v Pakrou [2008] SASC 364; Police v Sherlock [2009] SASC 64;
R v Ulman-Naruniec [2003] SASC 437, 143 A Crim R 531, referred to.
Aust Dig Criminal Law [3054]

Evidence – Admissibility – Admissions – Informal admissions – Other matters – No audio-visual record of police interview – Interview comprised of admissions and exculpatory statements – Evidence of admissions are admissible – Exceptional circumstances in the interests of justice – Exculpatory statements admissible as context for the admissions – Mixed statements admissible in their entirety.

Evidence Act 2001 (Tas), ss 81, 85A.
Kelly v The Queen [2004] HCA 12, 218 CLR 216; Nguyen v The Queen [2020] HCA 23, 269 CLR 299,
referred to.

Aust Dig Evidence [1073]

REPRESENTATION:

Counsel:

State: J Greenwood
Accused: N Edmondson

Solicitors:

State: Director of Public Prosecutions
Accused: Grant Tucker Barrister & Solicitor

Judgment Number:	[2023] TASSC 32
Number of paragraphs:	102

2 No 32/2023

File No 267/2020

STATE OF TASMANIA v ZACHARY ANTHONY COOKE

EDITED REASONS	WOOD J
(Delivered Orally 17 March 2023)
Application for permanent stay

1             This is a ruling in relation to an application by the accused, Zachary Anthony Cooke, for a permanent stay of his trial, and an application by the State regarding the admissibility of evidence, the determination of which has relevance to the stay application.
2             The accused is charged with assault, the particulars being that on 31 January 2019 at Falls Festival, Marion Bay, he punched Theo Kaliminios to the face. The accused pleaded not guilty and the trial was listed to proceed this sittings. In advance of the trial date, the accused made the application for a stay of his trial on the basis that evidence had been lost. He had participated in an interview with police shortly after the incident, which contained exculpatory statements, and it has transpired that a recording of the interview is not available and cannot be played on his trial.
3             A voir dire has been held and…

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 Cooke

Details

AGLC: Tasmania v Cooke [2023] TASSC 32
Case: [2023] TASSC 32
Decision Date: 17 March 2023

CaseChat Overview and Summary

The case of Tasmania versus Cooke came before the court involving allegations of assault and robbery. The primary dispute centred on whether the proceedings should be stayed due to the loss of an audio-visual record of a police interview with the accused, who claimed self-defence. This loss was argued to cause a substantial disadvantage to the defence, potentially undermining the fairness of the trial. The court had to determine if the fundamental rights of the accused to a fair trial were compromised and whether the proceedings should be halted as a result.

The legal issues before the court encompassed the right to a fair trial as enshrined in the Australian Constitution and whether the loss of the audio-visual record constituted an abuse of process or a fundamental defect in the proceedings. The court was tasked with balancing the prejudice caused by the missing evidence against the evidence that was still available and the directions that could be given to the jury. The accused's right to present a complete defence was weighed against the state's interest in prosecuting the alleged crimes.

The court found that while the loss of the audio-visual record was a significant disadvantage, the prejudice could be mitigated by the available evidence and the jury's directions. The court concluded that the fundamental fairness of the trial was not irreparably damaged, and thus, the proceedings should not be stayed. The court emphasised that the trial could proceed with the available evidence, including the accused's statements and the directions to the jury, ensuring that the accused's right to a fair trial was upheld as much as possible under the circumstances.

No further orders were made by the court beyond the decision to proceed with the trial, ensuring that the case would move forward with the jury being appropriately directed on the significance of the missing evidence.

Orders