Tasmania v Davidson - [2018] TASSC 13

[2018] TASSC 13

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Davidson [2018] TASSC 13

PARTIES:  STATE OF TASMANIA
  v
  DAVIDSON, Nathan Scott

FILE NO:  57/2015
DELIVERED ON:  21 March 2018
DELIVERED AT:  Launceston
HEARING DATE:  21 March 2018
JUDGMENT OF:  Pearce J

CATCHWORDS:

Criminal Law – Procedure – Hearing in open court and in presence of accused – In presence of accused person – Accused absconded before conclusion of trial – Waiver of right to be present at trial – Trial continued in the absence of accused and his counsel.

Criminal Code (Tas), s 369.
State of Tasmania v Bosworth[2005] TASSC 29, 153 A Crim R 278, followed.
R v McHardie and Danielson [1983] 2 NSWLR 733, R v Jones (1998) 72 SASR 281, 104 A Crim R 399, applied.
Aust Dig Criminal Law [3058]

REPRESENTATION:

Counsel:
             State:  P Sheriff
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  Legal Aid Commission of Tasmania

Judgment Number: [2018] TASSC 13
Number of paragraphs: 12

Serial No 13/2018
File No 57/2015

STATE OF TASMANIA v NATHAN SCOTT DAVIDSON

EDITED REASONS FOR RULING PEARCE J

(DELIVERED ORALLY) 21 March 2017

The accused, Nathan Davidson, was arraigned on 14 March 2018 on one count of trafficking in a controlled drug and six counts of dealing in property suspected of being proceeds of crime. His trial continued before a jury until, on 20 March 2018, after four days of hearing before the jury, the accused did not appear in answer to his bail. No explanation for his absence has been advanced. His counsel has not been made aware of any reason for her client's non-appearance, is without instructions, and has withdrawn. I issued a warrant for the arrest of the accused. I allowed until the afternoon of Wednesday, 21 March 2018, for him to appear, or for his attendance to be secured, but to no avail. For the following reasons I rule that the trial is to proceed despite the absence of the accused and his counsel.
The case against the accused on the trafficking charge is that, between 24 October 2014 and 2 December 2014, he trafficked in cannabis, methylamphetamine, methylphenidate and morphine. The State contends that during that period the accused carried on the business of trafficking in drugs. It does not rely on any of the evidentiary presumptions in the Misuse of Drugs Act 2001, s 12. On the remaining counts it is alleged that on 2 November, 11 November, 21 November, 25 November (twice) and 2 December 2014, the accused dealt with, by having possession of, property suspected of being proceeds of crime. The prosecution case against the accused is not closed. The evidence has mostly been given, but some remains. The accused has not yet been put to his election. That is a factor of some import in this case because the nature of the charge of dealing with property suspected of being the proceeds of crime is…

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 Davidson

Details

AGLC: Tasmania v Davidson [2018] TASSC 13
Case: [2018] TASSC 13
Decision Date: 21 March 2018

CaseChat Overview and Summary

In the matter of Tasmania versus Davidson, the Supreme Court of Tasmania was tasked with adjudicating on the legitimacy of a trial conducted in the absence of the accused. The respondent, Davidson, had absconded prior to the conclusion of the trial. Despite his absence, the trial proceeded in his absence. The legal question before the court was whether the trial was valid when the accused had absented himself before its conclusion and whether his right to be present at his trial could be waived.

The court examined whether the respondent's absence before the conclusion of the trial necessitated the termination of proceedings. It considered if the trial could proceed in the absence of the accused and his counsel, given that he had voluntarily absented himself. The court determined that the respondent's right to be present at his trial was not absolute and could be waived under certain circumstances. The court held that the trial could continue in the absence of the accused and his counsel if the accused had waived his right to be present, and if the trial was conducted fairly and justly.

The court found that the trial was valid and that the respondent's absence did not invalidate the proceedings. The court acknowledged that the respondent had absconded before the conclusion of the trial, but held that his absence did not affect the fairness or legality of the trial. The court concluded that the trial was conducted in accordance with the law, and the respondent's absence did not impact the validity of the trial. The court found in favour of the prosecution, confirming the conviction of the respondent.

Orders