COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Yabsley v The Queen [2015] TASCCA 25
PARTIES: YABSLEY, Eric William v THE QUEEN
FILE NO: CCA 277/2013 DELIVERED ON: 8 December 2015 DELIVERED AT: Hobart HEARING DATE: 28 August 2015 JUDGMENT OF: Porter, Estcourt and Pearce JJ
CATCHWORDS:
Criminal Law – Particular offences – Miscellaneous offences and matters – Other offences – Using a postal service to menace, harass or cause offence – Section creating the offence not ultra vires the Constitution.
Criminal Law – Procedure – Prosecution – Filing of information, presentment or indictment – Tasmania – Commonwealth offence – Complainant need not be a person referred to in the Justices Act 1959 (Tas) – Any person may institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth.
Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage – Other irregularities – Appellant not represented by counsel – Appellant made no complaint at trial or application for an adjournment or stay of proceedings – Factual and legal issues not overly complex – Trial judge properly explained appellant's rights and the procedures to be adopted – No miscarriage of justice in the circumstances of the case.
Aust Dig Criminal Law [3472]
REPRESENTATION:
Counsel: Appellant: In person Respondent: I M Arendt Solicitors: Appellant: In person Respondent: Commonwealth Director of Public Prosecutions
Judgment Number: [2015] TASCCA 25 Number of paragraphs: 141
Serial No 25/2015
File No CCA 277/2013
WILLIAM ERIC YABSLEY v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J ESTCOURT J PEARCE J 8 December 2015
Order of the Court
Appeal dismissed.
Serial No 25/2015
File No CCA 277/2013
WILLIAM ERIC YABSLEY v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J 8 December 2015
I agree with Estcourt J. The appeal should be dismissed for the reasons which his Honour has given.
I would add some remarks about the appeal being conducted on the basis of an agreed summary of the 172 grounds of appeal. Leave was neither sought nor given in relation to the further documents containing additional grounds, but they have been taken into account. Many of the grounds contained multiple "sub-grounds". Many of the grounds were argumentative, and contained discursive and polemic comments.
The appellant had input into the process by which the so-called grounds of appeal were distilled to an essence of comprehensible "summary" grounds. This was done at a directions hearing in March 2015 after the hearing of the appeal was adjourned on the appellant's application. He was not then properly prepared to argue his appeal. I am…
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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Yabsley v The Queen [2015] TASCCA 25
Case
[2015] TASCCA 25
Decision Date
CaseChat Overview and Summary
The case of *Yabsley v The Queen* concerned an appeal to the Full Court of the Supreme Court of Tasmania. The appellant, Yabsley, was appealing his conviction for using a postal service to menace, harass, or cause offence, an offence under Commonwealth law. The appeal raised several grounds, including challenges to the constitutional validity of the offence and procedural matters relating to the prosecution and the appellant's representation at trial.
The legal issues before the Court included whether the provision creating the offence of using a postal service to menace, harass, or cause offence was constitutionally invalid. Additionally, the Court was required to determine whether the complainant needed to be a person referred to in the Tasmanian *Justices Act 1959* for the institution of proceedings for a Commonwealth indictable offence, and whether a miscarriage of justice had occurred due to the appellant not being represented by counsel at trial. The Court also considered the application of section 85A of the *Evidence Act* in relation to a record of interview and the trial itself, in light of section 79(1) of the *Judiciary Act* and section 23A(4) of the *Crimes Act*.
The Court found that the grounds of appeal relating to the constitutional invalidity of the offence failed. It was held that any person may institute proceedings for the commitment for trial of another person for a Commonwealth indictable offence, and therefore the complainant was not restricted by the *Justices Act*. Regarding the appellant's lack of legal representation, the Court determined that no miscarriage of justice had occurred, as the factual and legal issues were not overly complex, and the trial judge had properly explained the appellant's rights and the procedural steps. Furthermore, the Court concluded that section 23A(4) of the *Crimes Act* excluded the application of section 85A of the *Evidence Act* concerning the admissibility of admissions made during official questioning in investigations for Commonwealth offences.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Section 23(2)(a) of the Judiciary Act provides as follows:"23 Decision in case of difference of opinion(2) Subject to the last preceding subsection, when the Justices sitting as a Full Court are divided in opinion as to the decision to be given on any question, the question shall be decided according to the decision of the majority, if there is a majority; but if the Court is equally divided in opinion:(a)in the case where a decision of a Justice of the High Court (whether acting as a Justice of the High Court or in some other capacity), a decision of a Supreme Court of a State or Territory or a Judge of such a Court, a decision of the Federal Court of Australia or a Judge of that Court or a decision of the Family Court of Australia or a Judge of that Court is called in question by appeal or otherwise, the decision appealed from shall be affirmed." The decision of the High Court in Monis and the outcome consequent upon the division of opinion of the Justices, is discussed in a case note Figg, Madeleine "Monis v The Queen; Droudis v The Queen (2013) 295 ALR 259" [2013] UTasLawRw 6; (2013) 32(1) University of Tasmania Law Review 125. The validity of the "harassing" limb of s 471.12 was declared by Tupman DCJ in R v Monis; R v Droudis [2011] NSWDC 39, and the challenge to that limb was abandoned in the Court of Criminal Appeal, and was not pursued in the High Court. The appellant's grounds of appeal related to the constitutional invalidity of s 471.12 fail. Section 85A of the Evidence Act provides as follows: Section 79(1) of the Judiciary Act provides as follows:"79 (1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable." Section 23A(4) of the Crimes Act provides as follows:"23A (4) Where a law of a State or Territory would, apart from this subsection, require the electronic recording of confessional evidence in relation to a Commonwealth offence (whether or not expressed as a condition of the admissibility of that evidence), that requirement ceases to apply on the commencement of this Part." There are two aspects to the appellant's grounds of appeal that invoke s 85A of the Evidence Act. The first relates to a record of interview in which the appellant participated during the course of the investigation of the offences with which he was charged. The second relates to the trial of those offences in this Court. As to the record of interview, it is the case that s 85A applies prima facie to admissions made by a defendant during official questioning in respect of Commonwealth offences, because, by virtue of s 79(1) of the Judiciary Act, the peculiarly Tasmanian provision applies when this Court exercises Federal jurisdiction. However s 79(1) is subject to any contrary provision in any law of the Commonwealth, and s 23A(4) of the Crimes Act plainly excludes a provision of the nature of s 85A in relation to the admissibility of admissions during official questioning during the course of investigations.