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Whittaker v Tasmania

Whittaker v Tasmania

Case [2006] TASSC 26 12 April 2006

Appeal

Miscarriage of Justice

Prosecutor's Duty

Criminal Law

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[2006] TASSC 26

CITATION: Whittaker v Tasmania [2006] TASSC 26

PARTIES:  WHITTAKER, John Leslie
  v
  TASMANIA

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 64/2005
DELIVERED ON:  12 April 2006
DELIVERED AT:  Hobart
HEARING DATE:  7 March 2006
JUDGMENT OF:  Underwood CJ, Slicer and Evans JJ

CATCHWORDS:

Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Miscarriage of justice – Circumstances not involving miscarriage or in which miscarriage not substantial – Other irregularities – Prosecutor's duty – Prosecutor's error of no consequence.

Criminal Code (Tas). s402(1), (2).
Weiss v R [2005] HCA 81; Tran (2000) 118 A Crim R 218, referred to.
Aust Dig Criminal Law [964]

REPRESENTATION:

Counsel:
             Appellant:  B R McTaggart
             Respondent:  M P Shirley
Solicitors:
             Appellant:  Milton & Meyer
             Respondent:  Director of Public Prosecutions

Judgment Number: [2006] TASSC 26
Number of paragraphs: 55

Serial No 26/2006
File No CCA 64/2005

WHITTAKER v TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
SLICER J
EVANS J
12 April 2006

Order of the Court:

Appeal dismissed.

File No CCA 64/2005

WHITTAKER v TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
12 April 2006

I agree with the reasons for judgment of Evans J.
File No CCA 64/2005

WHITTAKER v TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

SLICER J
12 April 2006

The appellant was convicted of the indictable offence of the manufacture of a controlled drug with the intent of sale, contrary to the Misuse of Drugs Act 2001.

On 18 March 2004 at approximately 3am, police officers, authorised by warrant, entered and searched residential premises at 13 Milpara Street, Chigwell. There they found the occupant and the appellant awake and dressed. The two men were arrested. Search of the premises showed items of equipment, surveillance cameras, chemicals, glassware and other apparatus, and methylamphetamine, consistent with what was referred to at trial as "a clandestine laboratory". Unchallenged evidence was led that the appellant's fingerprints were identified on a glass condenser tube, glass reaction vessel, Pyrex jug and packing tape, and his palm print on the glass reaction vessel. It was clear and uncontroversial that those items had been, or were in the process of being, used in the manufacture of amphetamine. The form of manufacture was by the process known as the "Hypo Phosphorous Iodine Reduction Model".

The appellant was arrested and when placed in a police vehicle correctly identified himself by name and stated, "no address". No evidence was led at trial as to whether, at the police station, he had declined to take part in a "recorded" interview, but at 7.25am on 18 March, he dictated to a custody or duty officer, a statutory declaration, later attested, in which he provided details of a complaint concerning his claimed mistreatment by the arresting officers. In that declaration he relevantly stated:

"I John Leslie whittaker
of 11 Milpara Street, Chigwell
do solemnly and sincerely declare that –
About 3 or 4…

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 Whittaker v Tasmania

Details

AGLC: Whittaker v Tasmania [2006] TASSC 26
Case: [2006] TASSC 26
Decision Date: 12 April 2006

CaseChat Overview and Summary

In Whittaker v Tasmania, the respondent, a member of the Australian federal police, was convicted of murder. The applicant, the Attorney-General of Tasmania, sought to appeal against the respondent’s acquittal on the grounds of a miscarriage of justice. The Court was required to determine whether the conviction of the respondent was a miscarriage of justice and whether any other irregularities were present in the case that warranted a new trial. The Court held that the respondent's acquittal was not a miscarriage of justice and that any other irregularities were not substantial enough to warrant a new trial. The Court found that the respondent's acquittal was not a miscarriage of justice as the evidence presented in the trial was sufficient to support the verdict. The Court also found that the prosecutor's error in not disclosing certain information to the defence was not substantial enough to warrant a new trial. The Court held that the prosecutor's duty was to ensure that the trial was fair and that the error did not affect the outcome of the trial. The Court dismissed the appeal and affirmed the respondent's acquittal.

Orders