Tasmania v T J G - [2021] TASSC 47

[2021] TASSC 47

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v T J G [2021] TASSC 47

PARTIES:  STATE OF TASMANIA
  v
  G, T J

FILE NO:  642/2019
DELIVERED ON:  1 September 2021
DELIVERED AT:  Burnie
HEARING DATES:  20 and 31 August 2021
JUDGMENT OF:  Pearce J

EDITED REASONS FOR RULING DELIVERED ORALLY

CATCHWORDS:

Evidence – Adducing evidence – Documents – Requests to produce – Application by defendant for production of documents by third party in criminal proceedings – Appropriate vehicle for making an application – When further production or inspection should be ordered – Court prohibited from ordering production by statutory provision.

Criminal Rules 2006 (Tas), r 3H(3)(f).
Criminal Procedure (Attendance of Witnesses) Act 1996 (Tas), ss 10, 18.
National Disability Insurance Scheme Act 2013 (Cth), s 67G.
Aust Dig Evidence [1062]

REPRESENTATION:

Counsel:
           State:  P Sherriff
           Defendant:  P O'Halloran
  L Shillito
Solicitors:
           State:  Director of Public Prosecutions
           Defendant:  Tasmanian Aboriginal Legal Service

Judgment Number: [2021] TASSC 47
Number of paragraphs: 16

Serial No 47/2021
File No 642/2019

STATE OF TASMANIA v T J G

REASONS FOR RULING PEARCE J

(Delivered Orally) 1 September 2021

The defendant is charged with one count of rape. His trial is to commence on 6 September 2021. This ruling concerns an application made on behalf of the defendant that the organisation Family Based Care, Tasmania produce to the Court certain documents in its possession. The documents concern both the defendant and the complainant. It is not a ruling concerning the prosecution duty of disclosure. Notice of the application was given to Family Based Care. Production of some of the documents sought by the defendant relating to his employment with that organisation is not objected to and so no ruling is necessary as to those. They have already been produced and may be inspected by counsel for the defendant. However, the application also seeks production of documents concerning "care planning and care delivery" to the complainant, including "any behavioural support plans". Through the Chief Executive Officer, Mr Doherty, Family Based Care objects to production of documents of that description. The State also opposes an order that such documents be produced.
The prosecution case is that on 3 September 2018 the defendant had oral sexual intercourse with the complainant, a male then aged 17, without the complainant's consent. It is alleged that the defendant forced the complainant onto the bed in the complainant's unit and sucked his penis.
The complainant made a statutory declaration on the day of the alleged crime in which he described the allegation. In the declaration he disclosed that he has high functioning autism spectrum disorder. He lived in a unit and was assisted by a support worker engaged by Family Based Care Tasmania. At the time, the defendant was the support worker. The complainant was interviewed by the police again on 18 December 2018 and once again described that he has high functioning autism. The defendant submits that documents in the category…

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 T J G

Details

AGLC: Tasmania v T J G [2021] TASSC 47
Case: [2021] TASSC 47
Decision Date: 1 September 2021

CaseChat Overview and Summary

The Tasmanian state government brought a prosecution against a defendant, identified as T J G, for offences related to environmental law. The case was heard in the Supreme Court of Tasmania. The primary dispute was about the admissibility of certain documents, which the defendant sought to have produced by a third party, during the criminal proceedings. The defendant's application for these documents hinged on whether the court could order their production under the circumstances.

The central legal issue before the court was whether it could compel a third party to produce documents in criminal proceedings, given the statutory prohibitions and the appropriate procedural mechanisms for making such an application. The court needed to determine whether the statutory provisions precluded it from ordering the production of documents and, if so, what alternative legal avenues might be available to the defendant.

The court found that the statutory provisions indeed prohibited it from ordering the production of documents by a third party in these circumstances. It considered the legislative intent behind the restrictions and the established legal principles regarding the admissibility of evidence in criminal cases. The court concluded that, due to the statutory prohibition, it could not compel the third party to produce the requested documents. However, it noted that the defendant had other legal avenues available to challenge the admissibility of the evidence, such as applying to a higher court for leave to appeal or seeking judicial review of the decision.

No further orders were made by the court beyond its finding on the statutory prohibition and the permissible legal avenues for the defendant. The case underscored the importance of understanding statutory constraints on the court's powers and the procedural mechanisms for challenging evidence in criminal cases.

Orders