Tasmania v Davey (No 3) - [2018] TASSC 16

[2018] TASSC 16

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Davey (No 3) [2018] TASSC 16

PARTIES:  STATE OF TASMANIA
  v
  DAVEY, Matthew John
  ARNOTT, Michelle Lee
  DAVEY, Dillon Anthony
  DALE, Scott Raymond

FILE NO:  146/2015
DELIVERED ON:  18 September 2017
DELIVERED AT:  Hobart
HEARING DATES:  15 September 2017
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Criminal Law – Procedure – Adjournment, stay of proceedings or order restraining proceedings – Abuse of process – In general – Where co-offender in joint criminal enterprise pleaded guilty to assault – Whether an abuse of process to indict remaining co-accused on a charge of committing an unlawful act intended to cause bodily harm acting in a joint criminal enterprise with offender convicted only of assault – State not permitted to rely on co-offender committing grievous bodily harm within indictment of remaining co-accused

Criminal Code Act (Tas), ss 3(1)(b)-(d), 184, 172.
Aust Dig Criminal Law [3054]

REPRESENTATION:

Counsel:

State:  J Shapiro
             Accused M Davey:  F Cangelosi
             Accused M Arnott  R Mainwaring
             Accused D Davey:  J Sawyer
             Accused S Dale  K Baumeler

Solicitors:

State: Director of Public Prosecutions

Judgment Number: [2018] TASSC 16
Number of paragraphs: 25

Serial No 16/2018
File No 146/2015

STATE OF TASMANIA v MATTHEW JOHN DAVEY,
MICHELLE LEE ARNOTT, DILLON ANTHONY DAVEY
and SCOTT RAYMOND DALE (No 3)

REASONS FOR RULING ESTCOURT J

18 September 2017

Matthew John Davey, Michelle Lee Arnott, Dillon Anthony Davey and Scott Raymond Dale are jointly charged on an indictment dated 8 September 2016 with one count of committing an unlawful act intended to cause grievous bodily harm contrary to s 170 of the Criminal Code, and one count of assault by deprivation of liberty contrary to s 184 of the Code. The crimes are alleged to have occurred between 7 and 8 May 2015. Each accused pleaded not guilty to both counts, and the trial commenced on 4 September 2017. The accused, Arnott, subsequently pleaded guilty to assault on both counts. Her pleas were accepted by the State and she was convicted and sentenced by Blow CJ on 14 September 2017. A jury has not as yet been sworn.
Before Ms Arnott pleaded guilty, the accused Matthew Davey, Dillon Davey and Scott Dale had each made applications for a separate trial.
For reasons related to the proposed use of the evidence of the video recorded records of interview by police of those accused, in combination with audio and visual recordings of the alleged attack upon the complainant, said to be recorded on the mobile telephone of the accused Dillon Davey, I granted those applications on 8 September 2017. I directed that the accused, Matthew Davey, be tried separately from any of his co-accused, other than the accused Arnott, and that the accused, Scott Dale, be tried separately from any of his co-accused, other than the accused Arnott. In doing so I observed that I saw no impediment to the accused, Dillon Davey, and the accused, Arnott, being jointly tried with each other.
It was…

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 Davey (No 3)

Details

AGLC: Tasmania v Davey (No 3) [2018] TASSC 16
Case: [2018] TASSC 16
Decision Date: 18 September 2017

CaseChat Overview and Summary

In the case of Tasmania v Davey (No 3), the respondent was charged with assault occasioning actual bodily harm and affray in relation to an incident occurring on 28 April 2011. This incident was part of a larger dispute involving a group of people. The respondent was charged alongside several co-offenders, one of whom had already pleaded guilty to assault in relation to the same incident. The Supreme Court of Tasmania was tasked with determining whether it was an abuse of process to indict the respondent on the charges of assault occasioning actual bodily harm and affray when one of the co-offenders had already pleaded guilty to assault only.

The court had to decide if it was an abuse of process to indict the respondent on charges relating to the same incident when one of the co-offenders had already pleaded guilty to assault only. This raised questions about the principle of double jeopardy and whether it was appropriate to proceed with charges against the respondent when a co-offender had already been convicted of a lesser offence in relation to the same incident. The court also needed to determine whether the state was permitted to rely on the co-offender's grievous bodily harm within the indictment of the remaining co-accused.

The court found that it was an abuse of process to indict the respondent on the charges of assault occasioning actual bodily harm and affray when one of the co-offenders had already pleaded guilty to assault only. The court held that it was not appropriate to proceed with charges against the respondent when a co-offender had already been convicted of a lesser offence in relation to the same incident. The court also held that the state was not permitted to rely on the co-offender's grievous bodily harm within the indictment of the remaining co-accused. The indictment was quashed and the charges against the respondent were dismissed.

Orders