Tasmania v MAR - [2011] TASSC 56

[2011] TASSC 56

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v MAR [2011] TASSC 56

PARTIES:  STATE OF TASMANIA
  v
  M A R

FILE NO/S:  487/2010
DELIVERED ON:  19 October 2011
DELIVERED AT:  Hobart
HEARING DATE:  3, 4 October 2011
JUDGMENT OF:  Porter J
CATCHWORDS:

Criminal Law – Procedure – Adjournment, stay of proceedings or order restraining proceedings – Stay of proceedings – Abuse of process – In general – Ex officio indictment alleging crimes committed as a youth – Youth justice legislation providing for election to be tried in Youth Justice Court on prescribed offences – Election made the crime a summary offence – Original charges on complaints not prescribed offences – Counts on indictment were prescribed offences – Accused would have made election if available – Significant differences between adult and youth criminal justice regimes – Stay of proceedings on relevant counts ordered.

Barton v R (1980) 147 CLR 75; R v Swingler [1996] 1 VR 257 applied.
R v Minney [2003] TASSC 64 ; A, MC v Police (2008) 102 SASR 151; R v Abdulla (2010) 200 A Crim R 365, referred to.
Youth Justice Act 1997 (Tas), s161(2), (2B).
Aust Dig Criminal Law [3054]

Family Law and Child Welfare – Child Welfare under State legislation – Crimes and offences by children – Jurisdiction of Supreme Courts – Stay of proceedings on indictment – Abuse of process – Ex officio indictment alleging crimes committed as a youth – Youth justice legislation providing for election to be tried in Youth Justice Court on prescribed offences – Election made the crime a summary offence – Original charges on complaints not prescribed offences – Counts on indictment were prescribed offences – Accused would have made election if available – Significant differences between adult and youth criminal justice regimes – Stay of proceedings on relevant counts ordered.

Youth Justice Act 1997 (Tas), s161(2), (2B).
Aust Dig Family Law [588]

REPRESENTATION:

Counsel:
             State:  G Hoare
             Accused:  G A Richardson
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  G A Richardson

Judgment Number: [2011] TASSC 56
Number of paragraphs: 31

Serial No 56/2011
File No 487/2010

STATE OF TASMANIA v M A R

REASONS FOR JUDGMENT PORTER J

19 October 2011

Introduction

The accused faces an indictment dated 11 May 2011 containing 15 counts of unlawful sexual intercourse with a young person, and one count of indecent assault. The counts relate to two male complainants, to whom I will simply refer as C1 and C2. With the exception of count 8, a charge of unlawful sexual intercourse with a young person, all counts are alleged to have been committed at a time when the accused was under 18 years of age. This gives rise to considerations under the Youth Justice Act 1997 ("the Act"). With the exception of the one count of indecent assault, the accused had not been committed for trial in this Court on the crimes charged in the indictment. The committal order related to charges of rape. To 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 MAR

Details

AGLC: Tasmania v MAR [2011] TASSC 56
Case: [2011] TASSC 56
Decision Date: 19 October 2011

CaseChat Overview and Summary

In the case of Tasmania v MAR, the dispute centred on the validity of proceedings against the respondent, who was charged as an adult with offences committed during his youth. The Supreme Court of Tasmania was tasked with determining whether the adult charges should be stayed due to the respondent's entitlement to elect a youth court trial under the applicable youth justice legislation.

The primary legal issue before the court was whether the respondent, who had been charged as an adult, could be granted a stay of proceedings on the basis that he would have elected to be tried in the Youth Justice Court if the offence he was charged with had been a prescribed offence under the Youth Justice Act. The court had to consider whether the significant differences between the adult and youth criminal justice regimes warranted a stay of proceedings.

The court found that the respondent would have made the election to be tried in the Youth Justice Court if the charges had been prescribed offences, and the significant differences between the adult and youth criminal justice regimes justified granting a stay of proceedings. The court recognised that the respondent's entitlement to elect a youth court trial was a crucial factor and that the nature of the offences and the differences in the respective regimes were compelling reasons for the stay. Consequently, the court ordered a stay of proceedings on the relevant counts against the respondent.

In summary, the court granted a stay of proceedings on the counts in question, recognising the respondent's right to elect a youth court trial and the substantial differences between the adult and youth criminal justice systems. This decision underscores the importance of the Youth Justice Act and the procedural rights it affords to young offenders.

Orders