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Wilson v Tasmania

Wilson v Tasmania

Case [2017] TASCCA 11 25 July 2017

Appeal

Procedural Fairness

Criminal Law

Statutory Interpretation

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[2017] TASCCA 11

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Wilson v Tasmania [2017] TASCCA 11

PARTIES:  WILSON, Marcus Paul
  v
  STATE OF TASMANIA

FILE NO:  2447/2016
DELIVERED ON:  25 July 2017
DELIVERED AT:  Hobart
HEARING DATE:  7 June 2017
JUDGMENT OF:  Pearce J, Marshall and Porter AJJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Particular circumstances not amounting to miscarriage of justice – Misdirection – Defence counsel's argument to jury based on matters not put to complainant – Trial judge directed jury that it might think the weight of the submission significantly diminished – No requirement in the circumstances for trial judge to explain possibilities of why matters not put – Direction to jury not a misdirection and no miscarriage of justice.

R v Manunta (1989) 54 SASR 17, considered.
R v Rajakaruna (No 2) (2006) 15 VR 592; R v Morrow (2009) 26 VR 526; R v Ferguson (2009) 24 VR 51, applied.
Aust Dig Criminal Law [3470]

REPRESENTATION:

Counsel:
             Appellant:  G Barns and C Scott
             Respondent:  J Hartnett
Solicitors:
             Appellant:  N/A
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASCCA 11
Number of paragraphs: 46

Serial No 11/2017
File No 2447/2017

MARCUS PAUL WILSON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
MARSHALL AJ
PORTER AJ
25 July 2017

Order of the Court

Appeal dismissed.

Serial No 11/2017
File No 2447/2016

MARCUS PAUL WILSON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
25 July 2017

I agree with Porter AJ. For the reasons given by his Honour I would dismiss the appeal.
File No 2447/2016

MARCUS PAUL WILSON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

MARSHALL AJ
25 July 2017

I agree with Porter AJ. For the reasons given by his Honour I would dismiss the appeal.

File No 2447/2016

MARCUS PAUL WILSON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PORTER AJ

25 July 2017

Introduction

On 11 August 2016, a jury found the appellant guilty of two counts of rape after a trial before Estcourt J. The two counts related to one incident on 26 July 2014. One count related to an act of oral sexual intercourse; the other to an act of vaginal intercourse. This is an appeal against conviction. The sole ground of appeal alleges that the trial judge erred in law by misdirecting the jury about the application of the rule in Browne v Dunn (1893) 6 R 67 (HL). In truth, the real complaint is about the direction the trial judge gave to the jury following his Honour's application of the rule. In short, the issue arose because then defence counsel argued to the jury a reason for the complainant to fabricate a complaint of rape, which reason had not been put to the complainant. Crown counsel raised the point, after which his Honour told the jurors…

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 Wilson v Tasmania

Details

AGLC: Wilson v Tasmania [2017] TASCCA 11
Case: [2017] TASCCA 11
Decision Date: 25 July 2017

CaseChat Overview and Summary

Wilson appealed his conviction for sexual assault. The appeal concerned a direction given by the trial judge to the jury regarding defence counsel's submissions. The Court of Criminal Appeal of Tasmania heard the matter.

The central legal issue was whether the trial judge’s direction to the jury constituted a misdirection, thereby causing a miscarriage of justice. Specifically, the court had to determine if the judge erred in instructing the jury that they might consider the weight of defence submissions diminished because certain matters were not put to the complainant during cross-examination, and whether the judge was obliged to elaborate on potential reasons for this omission.

The Court of Criminal Appeal held that the trial judge’s direction was not a misdirection. The judge had correctly advised the jury that they were entitled to consider the weight they gave to defence submissions, particularly where those submissions relied on matters not explored with the complainant. The court found no requirement for the judge to speculate on or explain the possible reasons why defence counsel might not have put certain matters to the complainant. The jury was adequately informed that they could assess the significance of such omissions.

Consequently, the court found that no miscarriage of justice had occurred and dismissed the appeal.

Orders