Tasmania v SLS - [2008] TASSC 61

[2008] TASSC 61

CITATION: Tasmania v SLS [2008] TASSC 61

PARTIES:  TASMANIA (STATE OF)
  v
  S, S L

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  CRIMINAL
FILE NO/S:  135/2008
DELIVERED ON:  20 October 2008

(Ruling - 7 October 2008)

DELIVERED AT:  Launceston
HEARING DATE:  6, 7 October 2008
JUDGMENT OF:  Porter J

CATCHWORDS:

Criminal Law – Particular offences – Offences relating to the administration of justice – Other offences – Compounding a crime – Proper construction of the two limbs of the section – "Compounds or conceals a crime" – "Abstaining from, discontinuing or delaying a prosecution" – Second limb only relates to where prosecution commenced – Meaning of "compounds" and "conceals".

Criminal Code 1924 (Tas), s102(1).
R v Enslow (2003) 12 Tas R 200, not followed.
Aust Dig Criminal Law [316]

REPRESENTATION:

Counsel:
             Crown:  J P Ransom
             Accused:  S J N Brown
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  Simon Brown

Judgment Number: [2008] TASSC 61
Number of paragraphs: 39

Serial No 61/2008
File No 135/2008

STATE OF TASMANIA v S L S

REASONS FOR JUDGMENT PORTER J

7 October 2008

Introduction

The accused was charged with compounding a crime, contrary to the Criminal Code, s102(1). That section provides as follows:

"102 — Compounding crimes
(1) Any person who solicits, receives, or obtains, or agrees to receive or obtain, any property or benefit of any kind for himself or any other person, as a consideration for any agreement or understanding that he will compound or conceal a crime, or will abstain from, discontinue, or delay a prosecution for a crime, is guilty of a crime.
Charge:
Compounding a crime."

The particulars of the charge as originally set out in the indictment were that the accused:

"… at … in Tasmania, on or about the 3rd of January 2007, received from [LEW] two hundred thousand dollars for herself or purportedly on behalf of her daughter [AB] as consideration for an agreement or understanding that [SLS] would abstain from or delay a prosecution for a crime, namely the indecent assault of [AB], by ensuring that her daughter, [AB], would not be permitted to make, or would not make, a complaint to police that she had been indecently assaulted by [LW]."

The accused pleaded not guilty and the jury was empanelled. In the absence of the jury the Crown made application to amend the particulars by adding the words "conceal a crime" after the words "abstain from or delay a prosecution for a crime, …". The application was opposed. In summary, the submission in opposition was that:

·     "compound or conceal" conveyed but one concept;
·     that concept was embodied in the meaning of the word "compound"; that is, the settlement or compromise of a crime by an agreement or understanding not to prosecute. (As will later appear, the common law meaning of compounding a felony was, in simple terms, an agreement for reward not to prosecute);
·     the word "conceal" thus added nothing to what was meant by…

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 SLS

Details

AGLC: Tasmania v SLS [2008] TASSC 61
Case: [2008] TASSC 61
Decision Date: 20 October 2008

CaseChat Overview and Summary

Tasmania brought an appeal against a decision to dismiss charges against SLS, who was alleged to have compounded a crime. The dispute centred on whether the charge was properly framed and whether the conduct of SLS amounted to compounding a crime under Tasmanian law. The Supreme Court of Tasmania was the court that heard the appeal.

The legal issues before the court were whether the charge against SLS was properly framed under the statute, and whether SLS's conduct amounted to compounding a crime. The court had to determine whether the second limb of the statute, concerning abstaining from, discontinuing or delaying a prosecution, was applicable only where a prosecution had already been commenced. Additionally, the court was required to interpret the meanings of "compounds" and "conceals" in the context of the statute.

In delivering the judgment, the court found that the charge against SLS was not properly framed as it did not specify whether the alleged conduct related to abstaining from, discontinuing or delaying a prosecution or whether it involved compounding or concealing a crime. The court further held that the second limb of the statute applied only where a prosecution had already been commenced. The court clarified that "compounds" and "conceals" referred to actions that involve making a compromise or settlement in relation to a crime, or taking steps to prevent the discovery or investigation of a crime. The court concluded that SLS's conduct did not fall within the scope of the statute, and thus the charges against SLS were dismissed.

The court ordered that the charges against SLS be dismissed and that the matter be returned to the lower court for further consideration. The court did not find it necessary to provide further orders or directions.

Orders