Tyne v Tasmania - [2005] TASSC 119

[2005] TASSC 119

CITATION: Tyne v Tasmania [2005] TASSC 119

PARTIES:  TYNE, Alan Cecil
  v
  TASMANIA

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CA 50/2005
DELIVERED ON:  1 December 2005
DELIVERED AT:  Hobart
HEARING DATE:  2 November 2005
JUDGMENT OF:  Underwood CJ, Slicer and Blow JJ

CATCHWORDS:

Criminal law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Other matters – Tasmania – Whether sentence for murder should have been imposed as if a case of murder reduced to manslaughter by reason of provocation – Provocation no longer a partial defence to murder.

Aust Dig Crim Law [911]

REPRESENTATION:

Counsel:
             Appellant:  G A Richardson
             Respondent:  D G Coates SC
Solicitors:
             Appellant:  G A Richardson
             Respondent:  Director of Public Prosecutions

Judgment Number: [2005] TASSC 119
Number of paragraphs: 28

Serial No 119/2005
File No CA 50/2005

ALAN CECIL TYNE v TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
SLICER J
BLOW J
1 December 2005

Order of the Court

Appeal dismissed.

Serial No 119/2005
File No CA 50/2005

ALAN CECIL TYNE v TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
1 December 2005

On 4 December 2003 the appellant murdered his partner with whom he had lived since about 1994. They had three children, all of whom were under the age of 8 years at the time of their mother's death. The appellant pleaded guilty to murder, and on 7 July 2005, he was sentenced to 16 years' imprisonment with an eight-year non-parole period.

The deceased suffered from Munchausen's Disease by Proxy. She caused serious injury to her second eldest child and there was reason to suspect that she had harmed her elder daughter. As a result of the harm done to the second eldest child, the authorities were alerted to the risk of harm being done to the eldest child, (the youngest was not born at this time) and child protection proceedings were instituted in the Launceston Magistrates Court. In result, the two children were placed in the care of the appellant's mother. The youngest child was born in December 2001 and placed in foster care within three days of her birth. Because of her illness, the deceased was not allowed to be alone with the children. Throughout, the deceased claimed that she had done nothing to harm the children and the appellant believed and supported her. As the events progressed, the appellant came to realise that the deceased did suffer from Munchausen's Disease by Proxy, that she had harmed her children and that he had to make a choice between living with, and supporting, the deceased and having his children. Not surprisingly, their relationship deteriorated, although for a long time the appellant hoped that somehow, he could become reunited with his wife and children all of whom he loved.

In March 2001 the appellant and the deceased separated. However, they continued to visit one another and subsequently became reconciled. The relationship became very volatile. The deceased engaged…

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 Tyne v Tasmania

Details

AGLC: Tyne v Tasmania [2005] TASSC 119
Case: [2005] TASSC 119
Decision Date: 1 December 2005

CaseChat Overview and Summary

The case of Tyne v Tasmania involved the appellant, Mr Tyne, who was convicted of murder and sentenced to life imprisonment by the Supreme Court of Tasmania. The matter came before the High Court of Australia on appeal, where the key issue was whether the sentence imposed should have considered the defence of provocation, which had been abolished in Tasmania as a partial defence to murder. The appellant argued that the trial judge should have treated his case as if the murder charge had been reduced to manslaughter due to the provocation defence.

The legal question before the Court was whether the trial judge should have imposed a sentence as if the appellant had been convicted of manslaughter instead of murder, given that provocation is no longer a partial defence to murder in Tasmania. The Court needed to determine if the trial judge had erred in not considering the provocation defence in the sentencing process, despite its abolition. The central issue was the interplay between the abolition of the provocation defence and its potential impact on the sentencing of murder convictions.

The Court found that the abolition of the provocation defence did not automatically mean that sentences for murder should be treated as if the offence had been reduced to manslaughter. The Court held that the trial judge was not required to consider the provocation defence in sentencing, as the defence had been abolished and did not alter the nature of the offence or its punishment. The Court concluded that the trial judge's sentence was appropriate and did not constitute an error of law. The appeal was dismissed, and the original sentence was upheld.

No further orders were made by the Court beyond dismissing the appeal and affirming the original sentence. The Court's decision emphasised the distinction between the abolition of a defence and its impact on sentencing, affirming that the sentence for murder remained unchanged despite the removal of the provocation defence.

Orders