Tuck v The Queen - [1999] TASSC 135

[1999] TASSC 135

CITATION: Tuck v R [1999] TASSC 135

PARTIES:  TUCK, Suzanne
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  Appellate
FILE NO/S:  CCA85/1999
DELIVERED ON:  8 December 1999
DELIVERED AT:  Hobart
HEARING DATE:  9 November 1999
JUDGMENT OF:  Cox CJ, Slicer J, Evans J

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Information, indictment or presentment - Joinder - By statute - Other cases - Whether appropriate to charge one count based on general deficiency or several counts of admitted general thefts.

Evidence Act 1910 (Tas), s114.
S v R (1989) 168 CLR 266; Johnson v Miller (1937) 59 CLR 467 at 487; R v Greenfield (1973) 57 Cr App R 849, distinguished.
R v Lawson [1952] 1 All ER 804; Walsh v Tattersall (1996) 188 CLR 77, referred to.
Taylor v R (1996) 6 Tas R 310; R v Moussad [1999] NSWCCA 337, considered.
Aust Dig Criminal Law [723]

Criminal Law - Jurisdiction, practice and procedure - Information, indictment or presentment - Averments - Uncertainty, duplicity and ambiguity - Whether trial judge erred in refusing the appellant's application to quash the indictment pursuant to the Criminal Code, s352(1) - Appeal dismissed.

Criminal Code (Tas), s311(2).
Evidence Act 1910 (Tas), s114.
Walsh v Tattersall (1996) 188 CLR 77; R v Greenfield (1973) 57 Cr App R 849; R v Wright 7 Cox CC 413, considered.
R v Bookman 5 C & P 300; R v Richardson 8 Cox CC 448; R v Lambert 2 Cox CC 309, referred to.
Aust Dig Criminal Law [713]

REPRESENTATION:

Counsel:
             Appellant:  S J N Brown
             Respondent:  M A Stoddart
Solicitors:
             Appellant:  Clarke & Gee
             Respondent:  Director of Public Prosecutions

Judgment Number: [1999] TASSC
Number of paragraphs: 44

Serial No 135/1999
File No CCA85/1999

SUZANNE TUCK v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
SLICER J
EVANS J
8 December 1999

Order of the Court:

Appeal dismissed.

Serial No 135/1999
File No CCA85/1999

SUZANNE TUCK v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
8 December 1999

The appellant was charged with one count of stealing, the particulars being that:

""suzanne tuck at Launceston in Tasmania between on or about the 1^st day of July 1993 and on or about the 30^th day of August 1994 stole approximately $53,000.00 in cash the property of the Ravenswood Over 50's Club."

On being arraigned, her counsel moved to quash the indictment pursuant to the Criminal Code, s351(1), submitting that although the indictment charged a single count of stealing the sum of $53,000 on one day in the 14 month period specified in it, the Crown case was that between those dates she regularly stole either $1,000 or $2,000 by wrongfully taking those sums entrusted to her by the club for the purposes of being banked and that trial on that single count would prejudice and embarrass her in her defence. The submission was over-ruled and…

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 Tuck v The Queen

Details

AGLC: Tuck v The Queen [1999] TASSC 135
Case: [1999] TASSC 135
Decision Date: 8 December 1999

CaseChat Overview and Summary

Suzanne Tuck was convicted of stealing $53,000 from the Ravenswood Over 50's Club. She appealed against the conviction, arguing that the trial judge erred in refusing to quash the indictment on the grounds that it was prejudicial and/or uncertain. The case concerned the appellant's role as the wife of the club's treasurer, where she was entrusted with the club's takings, which she admitted to misappropriating for gambling. The Crown charged her with one count of stealing the specified sum over a 14-month period. The appellant argued that multiple counts should have been used to detail each instance of theft. The court considered whether the single count indictment was duplicitous and prejudicial, and if statutory provisions allowing for charges based on general deficiency applied. The court found that the statutory provisions and the nature of the offence allowed for a single count indictment based on a general deficiency, and there was no error in the trial judge's decision. The appeal was dismissed.

Orders