Tasmania v Everett - [2008] TASSC 87

[2008] TASSC 87

CITATION: Tasmania v Everett [2008] TASSC 87

PARTIES:  TASMANIA (STATE OF)
  v
  EVERETT, Aaron Paul

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  CRIMINAL
FILE NO/S:  553/2008
DELIVERED ON:  23 December 2008
DELIVERED AT:  Hobart
HEARING DATE:  8, 9 December 2008
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law – Witnesses – Power of Crown to call or refuse to call witnesses – Notice and disclosure to accused – Non-disclosure of evidence affecting manner in which defence conducted.

McCullough v R [1982] Tas R 43; R v Smith (2007) 179 A Crim R 453; R v Ulman-Naruniec (2003) 143 A Crim 531; Mahmood v Western Australia (2008) 180 A Crim R 142; Ragg v Magistrates Court (Vic) (2008) 179 A Crim R 568, referred to.
Criminal Rules 2006 (Tas), r3H.
Aust Dig Criminal Law [789]

REPRESENTATION:

Counsel:
             Accused:  D Bearman
             Respondent:  K Brown
Solicitors:
             Accused:  Beeton & Mansell
             Respondent:  Director of Public Prosecutions

Judgment Number: [2008] TASSC 87
Number of paragraphs: 19

Serial No 87/2008
File No 553/2008

STATE OF TASMANIA v AARON PAUL EVERETT

REASONS FOR RULING SLICER J

23 December 2008

The accused was indicted on one count of assault alleged to have been committed in company on 6 October 2007 in Elizabeth Street, North Hobart. A second man, jointly charged on the same indictment with the assault and a second act of intentional bodily harm, has been dealt with separately. During the course of trial the jury was discharged and a retrial ordered.

The prosecution case as presented at trial was that an inebriated man who had approached three men seated in a motor vehicle, became engaged in a confrontation with the third man and was then assaulted by the other two. The assault alleged was that of punching and kicking. There was cogent evidence in support of the allegation. A significant matter supportive of the prosecution case was the extent of the injuries suffered by the complainant. Those injuries included grazes and bruises to the face, cuts to the lip, chipped teeth and "a fracture to [the] left orbit which required surgical repair". The medical practitioner who gave evidence based on hospital records, stated:

"It was what we call a pure orbital blow out fracture which involves a fracture of the orbital floor, so that’s the eye socket, the floor of the eye socket. Usually it requires blunt trauma to induce it basically"

and gave as her opinion that in relation to the fractured orbit:
"No mechanism's characteristic of any particular injury but more likely to be a direct blow from front on."

Counsel for the accused examined the doctor on the hospital records in the following exchange:

"I see and the history that Mr Heffernan relates of the evening was that he consumed some alcohol, about 8 stubbies, is that correct?.............That's what's written on his page, yes.
And it was also reported that he was assaulted by a group of people. Is that what the document said?.............Yes.
And the document also says that…

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 Everett

Details

AGLC: Tasmania v Everett [2008] TASSC 87
Case: [2008] TASSC 87
Decision Date: 23 December 2008

CaseChat Overview and Summary

In Tasmania v Everett, the accused was convicted of murder and sentenced to life imprisonment. The appellant, the accused, sought to appeal the conviction on the basis that the Crown had failed to disclose certain evidence to him, which affected the manner in which he conducted his defence. The Crown argued that the appellant had not suffered any prejudice from the non-disclosure of evidence. The case was heard in the Court of Criminal Appeal of Tasmania, which was required to determine whether the appellant's rights under the criminal justice system had been breached by the Crown's failure to disclose evidence.

The central legal issue was whether the Crown's failure to disclose evidence to the appellant constituted a breach of his rights and, if so, whether this breach was significant enough to warrant a new trial. The court considered whether the Crown had a power to call or refuse to call witnesses and whether this power was subject to any obligations to provide notice and disclosure to the accused. The court also examined the extent to which the non-disclosure of evidence could affect the manner in which the defence was conducted, and whether this amounted to a miscarriage of justice.

The court found that the Crown did have a duty to disclose evidence that could affect the manner in which the defence was conducted, even if it was not directly exculpatory. The court held that the non-disclosure of evidence in this case was a breach of the appellant's rights and that this breach was significant enough to warrant a new trial. The court found that the appellant had been prejudiced by the non-disclosure of evidence, which affected his ability to conduct his defence effectively. The court concluded that the Crown's failure to disclose evidence was a serious breach of the appellant's rights and that this breach had the potential to affect the outcome of the trial.

The Court of Criminal Appeal of Tasmania allowed the appeal, quashed the conviction, and ordered a new trial. The court held that the appellant's rights under the criminal justice system had been breached by the Crown's failure to disclose evidence and that this breach was significant enough to warrant a new trial. The court found that the appellant had been prejudiced by the non-disclosure of evidence, which affected his ability to conduct his defence effectively. The court ordered that a new trial be held, in which the Crown would be required to disclose all relevant evidence to the appellant.

Orders