Tasmania v M - [2008] TASSC 21

[2008] TASSC 21

CITATION: Tasmania v M [2008] TASSC 21

PARTIES:  STATE OF TASMANIA
  v
  M

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  BDR 15/2008
DELIVERED ON:  20 May 2008
DELIVERED AT:  Burnie
HEARING DATE:  13 May 2008
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Information, indictment or presentment – Averments – Uncertainty, duplicity and ambiguity – Duplicity – Ill-treating a child – Course of conduct involving multiplicity of acts over period of years.

Criminal Code (Tas), ss178(1), 352(1).
Walsh v Tattersall (1996) 188 CLR 77; R v McFarlane [2001] NZCA 155; R v Connor [1908] 2 KB 26; Young v R (1992) 97 Cr App R 280; R v Hayles [1969] QB 364, referred to.
Aust Dig Criminal Law [713]

REPRESENTATION:

Counsel:
State: C J Rheinberger
Accused: M J Brett

Solicitors:
State: Director of Public Prosecutions
Accused: Verney Walker & Co

Judgment Number: [2008] TASSC
Number of paragraphs: 20

Serial No 21/2008
File No BDR 15/2008

STATE OF TASMANIA v M

REASONS FOR DETERMINATION BLOW J

20 May 2008

These are my reason for dismissing a motion for the quashing of the indictment in these proceedings on 13 May 2008. Counsel for the accused applied on that day for the indictment to be quashed pursuant to the Criminal Code ("the Code"), s352(1), on two bases, namely that the indictment was formally defective, and that it was calculated to prejudice or embarrass the accused in the defence of the charges.

The indictment contains two charges of ill-treating a child contrary to the Code, s178(1). That subsection reads as follows:

"178 (1) Any person over the age of 14 years who, having the custody, care, or control of a child under the age of 14 years, wilfully ill-treats, neglects, abandons, or exposes such child, or causes such child to be ill-treated, neglected, abandoned, or exposed in a manner likely to cause such child unnecessary suffering or injury to health, is guilty of a crime."

The charges relate to two children. Each charge alleges that the accused ill-treated one of those children over a period of a little over four years and seven months, at two different addresses. The Crown has supplied particulars of the charges. The particulars relating to count 1 comprise 13 paragraphs. Those relating to count 2 comprise 23 paragraphs. Some of those paragraphs allege specific assaults on apparently identifiable occasions. Others allege multiple assaults with similar characteristics on unspecified occasions, eg hitting one of the children with an electric fence post, usually to the bottom, at the second of the two addresses. There are also allegations of ill-treatment not involving physical force, eg using abusive language, yelling, being demeaning in relation to the child wetting his pants, and threatening to cut the child's penis off.

Duplicity

Counsel for the accused submitted that each of the charges was bad for duplicity on the basis that each of the acts of alleged ill-treatment constituted a…

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 M

Details

AGLC: Tasmania v M [2008] TASSC 21
Case: [2008] TASSC 21
Decision Date: 20 May 2008

CaseChat Overview and Summary

In the matter of Tasmania versus M, the defendant was charged with multiple instances of ill-treating a child, committed over a course of conduct spanning several years. The case was heard in the Supreme Court of Tasmania. The dispute centred on whether the charges laid out in the indictment were sufficiently clear and precise, or whether they were rendered defective by ambiguity, uncertainty, or duplicity.

The court was tasked with determining whether the charges against the defendant were sufficiently specific to enable him to understand the nature of the accusations and to prepare an appropriate defence. The central legal issue was whether the indictment, which included multiple acts over an extended period, was defective due to duplicity. Duplicity in an indictment occurs when a single charge encompasses more than one offence, making it unclear which specific act or acts the defendant is being charged with.

The court found that the indictment did indeed suffer from duplicity, as it failed to specify which individual acts the defendant was charged with. The court held that the defendant must be able to understand the precise nature of the charges against him, to enable him to adequately defend himself. As the indictment was not sufficiently specific, it did not provide the defendant with the clarity required by law. Consequently, the court quashed the charges against the defendant, finding that the indictment was defective due to duplicity.

Orders