Tasmania v Tuv - [2012] TASSC 7

[2012] TASSC 7

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v TUV [2012] TASSC 7

PARTIES:  TASMANIA, State of
  v
  TUV

FILE NO/S:  362/2011
DELIVERED ON:  19 March 2012
DELIVERED AT:  Hobart
HEARING DATE:  19 March 2012
JUDGMENT OF:  Evans J

Criminal Law – Procedure – Course of evidence, statements and addresses - Addresses - Discretion to depart from the statutory order of addresses.

R v Ferguson [2000] TASSC 151; DPP; Re Y (1998) 19 WAR 47; Musarri v R [2006] WASCA 92 [152], applied.
Criminal CodeAct 1924 (Tas), s371.
Aust Dig Criminal Law [3132-3135]

REPRESENTATION:

Counsel:
           Crown:  J E Ansell
           Accused:                  G J Barns
Solicitors:
           Crown:  Director of Public Prosecutions
           Accused:                  PWB Lawyers

Judgment Number: [2012] TASSC 7
Number of paragraphs: 7

Serial No 7/2012
File No 362/2011

STATE OF TASMANIA v TUV

REASONS FOR JUDGMENT EVANS J

19 March 2012

The law on what the Criminal Code, s371, says with regard to the order of counsel's addresses on a criminal trial is as enunciated by Blow J in R v Ferguson [2000] TASSC 151. For relevant purposes, as explained by his Honour at [14], if an accused tenders an exhibit during the cross-examination of a prosecution witness, that constitutes adducing evidence for the purposes of s371(d), with the result that the accused or his or her counsel is required, pursuant to that provision, to address the jury before counsel for the prosecution.

However, as explained by his Honour at [15], there is authority for the proposition that s371 and its broadly similar Western Australian equivalent lay down rules which are directory, as distinct from mandatory, and that a trial judge has a discretion to depart from the statutory order of addresses. His honour cited Masnec v R [1962] Tas SR 254 at 268, Buck v R [1983] WAR 372 at 378, and Carter v R (1997) 19 WAR 8 at 44 – 46. I add to these authorities the joint decision of Neasey and Cosgrove JJ at 12 in Smith v R 51/1984, DPP; Re Y (1998) 19 WAR 47 at 62 and Musarri v R [2006] WASCA 92 [152].

In this case, the accused adduced evidence by tendering the witness statement of a witness. Counsel for the accused has applied to me to exercise my discretion to depart from the statutory order of addresses and call on the prosecutor to address first. The circumstance that precipitated this application is that, in the course of the evidence of an eye witness called by the prosecution, counsel for the accused read to the witness about eight of ten lines of a statement she had made to police a little over an hour after the incident in question. In substance, the witness acknowledged making the statement and did not challenge its accuracy, save for saying that she did not remember mentioning the names of two of the youths named in her statement. Neither in her statement, nor in her evidence, did she suggest…

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 Tuv

Details

AGLC: Tasmania v Tuv [2012] TASSC 7
Case: [2012] TASSC 7
Decision Date: 19 March 2012

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the State of Tasmania brought a case against TUV, with the file number 362/2011. The case was heard and delivered on 19 March 2012. The legal issue before the court was whether the statutory order of counsel's addresses in a criminal trial should be departed from. The court was required to decide whether the accused's counsel should address the jury before the prosecutor's counsel, given that the accused had tendered a witness statement during the cross-examination of a prosecution witness.

The court examined the relevant provisions of the Criminal Code and the applicable case law, including R v Ferguson, Masnec v R, Buck v R, Carter v R, Smith v R, DPP; Re Y, and Musarri v R. The court acknowledged that the statutory order of addresses is generally directory rather than mandatory, and that a trial judge has discretion to depart from the statutory order. However, the court also noted that if the evidence adduced by the accused is significant, the general rule is that the judge should not vary the order laid down by the statute.

In this case, the court found that the tender of the witness statement was inadvertent and largely inconsequential. The court also noted that the prosecutor had led evidence from several witnesses, much of which was contradictory. The court concluded that fairness required that the prosecutor should address the jury first, so that the accused and the jury could hear how the prosecution put its case and identify the evidence upon which it relied.

The court exercised its discretion to vary the order of addresses in favour of the accused, and directed that the prosecutor's counsel should address the jury first. This decision was based on the principle of fairness, and the unusual circumstances of the case. The court did not make any final orders in the case, as the matter was still ongoing at the time of the judgment.

Orders