WXY v Tasmania - [2012] TASCCA 13

[2012] TASCCA 13

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

CITATION: WXY v Tasmania [2012] TASCCA 13

PARTIES:  WXY
  v
  TASMANIA, STATE OF

FILE NO/S:  350/2012
DELIVERED ON:  23 November 2012
DELIVERED AT:  Hobart
HEARING DATE:  21 November 2012
JUDGMENT OF:  Evans, Tennent and Wood JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Test to be applied.

SKA v R (2011) 243 CLR 400, [2011] HCA 13, followed.
Aust Dig Criminal Law [3473]

REPRESENTATION:

Counsel:
             Appellant:  A J Hall
             Respondent:  J P Ransom
Solicitors:
             Appellant:  Grant Tucker, Solicitors
             Respondent:  Director of Public Prosecutions

Judgment Number: [2012] TASCCA 13
Number of paragraphs: 38

Serial No 13/2012
File No 350/2012

WXY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
TENNENT J
WOOD J
23 November 2012

Order of the Court

Appeal dismissed.

Serial No 13/2012
File No 350/2012

WXY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
TENNENT J
WOOD J
23 November 2012

The appellant appeals against his conviction on one count of rape and one count of indecent assault.

The sole ground of appeal is that the convictions are unsafe and unsatisfactory in all the circumstances of the case. The Criminal Code Act 1924, s402(1), provides:

"402 Determination of appeals
(1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal."

For relevant purposes, the applicable terms of s402(1) are the same as those contained in the Criminal Appeal Act 1912 (NSW), s6(1), which is the provision referred to in a passage from the decision in SKA v R (2011) 243 CLR 400, [2011] HCA 13 to which we will refer.

The ground of appeal against conviction in SKA was that the verdicts were perverse and not supported by the evidence. As noted by Simpson J in SKA v R [2009] NSWCCA 186, par[94], in New South Wales this ground is more commonly pleaded as being that the verdict is unreasonable and cannot be supported and was formerly pleaded as being that the verdict was unsafe and unsatisfactory. In result, the differences between the way the ground of appeal in SKA was expressed and the way the ground in this case is expressed are of no consequence when considering the following passage from the High Court's decision in SKA on the approach that should be taken to such an appeal.

At pars[11] – [14] in that decision French CJ, Gummow and Keifel JJ said:

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.

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Details

Case: [2012] TASCCA 13
Decision Date: 23 November 2012

CaseChat Overview and Summary

The appeal concerned a criminal conviction in the Supreme Court of Tasmania. The appellant, WXY, sought to challenge their conviction on the grounds that the verdict was unreasonable or insupportable having regard to the evidence presented at trial. The appeal was heard by Evans, Tennent, and Wood JJ.

The central legal issue before the Full Court was the test to be applied when determining whether a jury's verdict is unreasonable or insupportable. This involved considering the standard of appellate review in such circumstances and the extent to which the appellate court could substitute its own view of the evidence for that of the jury.

The Court affirmed that the test for an unreasonable or insupportable verdict requires the appellate court to consider whether, after a careful review of all the evidence, it is satisfied that no reasonable jury, properly instructed, could have reached the verdict. The Court emphasised that it is not for the appellate court to retry the case or to determine whether it would have reached the same conclusion as the jury. Rather, the focus is on whether the verdict is so unsafe or unsatisfactory that it should be set aside. The Court found that the evidence, when properly considered, was capable of supporting the jury's verdict.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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