Court of Criminal Appeal

  • Gee v Tasmania [2022] TASCCA 1 (2 February 2022) – Tasmanian Court of Criminal Appeal
    Admissibility of evidence’ – ‘Admissibility of prison telephone call recordings’ – ‘Admissions of guilt’ – ‘Appeal’ – ‘Credibility of victim’ – ‘Lies of victim’ – ‘Persistent family violence’ – ‘Post-offence conduct consistent with guilt’ – ‘Prison telephone calls

    Charges: Persistent family violence x 1.

    Proceedings: Appeal against conviction.

    Facts: The appellant was found guilty of persistent family violence [8]. He appealed on the following grounds:

    1. The learned trial judge erred in fact and in law in ruling that the complainant’s evidence be taken at a special hearing.
    2. The learned trial judge erred in fact and in law in admitting into evidence the recorded content of phone calls made by the appellant to the complainant:
      • ‘…in finding that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the appellant’;
      • ‘…in finding that it would not be unfair to admit the evidence having regard to its late disclosure’; and
      • ‘…in admitting the evidence conditional upon the State recalling the witness in circumstances where it had previously asserted in support of the application for special hearing that it would not do so under any circumstances’ [7].

    Decision and Reasoning: The appeal is dismissed.

    Ground 1: The Court affirmed the trial judge’s ruling on the special hearing, dismissing the first ground of appeal [32]. The trial judge had found that when faced with the prospect of giving evidence in court in the presence of the accused, the complainant experienced symptoms of anxiety that ‘adversely affected’ her ability to comprehend and respond to questions ‘to a significant degree’. The trial judge noted that the complainant’s anxiety manifested ‘itself physically by her shaking and becoming effectively unresponsive’. Therefore, the trial judge was satisfied that by requiring the complainant to give evidence ‘in the usual way’ she would likely ‘suffer severe emotional trauma’ and ‘be so intimidated or distressed as to be unable to give evidence… satisfactorily’. The trial judge explained that this was due to the nature of the complainant’s ‘relationship with the accused and… the subject matter’ [16].

    Ground 2: The court dismissed the second ground of appeal, stating that ‘the evidence was highly probative, involving admissions of guilt, post-offence conduct consistent with guilt and evidence highlighting the complainant's credibility’ [48]. The court held that the complainant’s admitted lies did not mean none of her evidence was to be believed.

  • Otto v Tasmania [2021] TASCCA 15 (16 December 2021) – Tasmanian Court of Criminal Appeal
    Accessory after the fact’ – ‘Application for leave to appeal’ – ‘Crown appeal against sentence’ – ‘Female perpetrator’ – ‘Murder

    Charges: Murder.

    Proceedings: Application for leave to appeal against conviction; Crown appeal against sentence.

    Facts: The applicant was convicted of the murder of her husband, the allegations being that she instigated her husband’s friend and her former lover Bradley Purkiss to commit the crime. The case against the applicant was solely circumstantial. The victim had been behaving erratically in the weeks leading up to the murder and the applicant and co-accused had spent a number of hours together on the afternoon before the murder. It was clear that the jury did not believe the applicant’s exculpatory statements in her police record of interview. The applicant and victim had been experiencing financial difficultied prior to the murder and she had reported to witnesses that her husband had mental and physical health issues which prevented him from working, and he was said to be an intimidating person. The applicant and Purkiss had a brief sexual relationship which ended prior to the murder, but they remained close. Text messages between Purkiss and the victim on the day of the murder were recovered from the victim’s phone, there was video evidence a man wearing a hood entered the applicant and victim’s home met after the murder and the CCV was disconnected after that person entered the home.


    Application for leave to appeal – the verdict of the jury was unreasonable and cannot be supported with regards to the evidence (accepting a verdict of accessory after the fact should be substituted if successful).

    Appeal against sentence – manifest inadequacy.

    Decision and reasoning:

    1. Leave granted and appeal allowed.
    2. Verdict of guilty of murder set aside and verdict of being an accessory after the fact to murder substituted.
    3. Sentence for murder set aside.*

    Porter J (Brett and Geason JJ concurring) held that the question for the court was whether it was open for the jury to have excluded all reasonable hypotheses consistent with innocence. On the evidence before the jury it was not possible to exclude the hypothesis put by the applicant in argument.

    *Note: On 17 December 2021, for the crime of being an accessory after the fact to murder, the Court recorded a conviction and sentenced the appellant to six years' imprisonment to commence on 30 May 2017. The Court ordered that she not be eligible for parole until she had served one half of that sentence.

  • McCall v Tasmania [2021] TASCCA 11 (12 November 2021) – Tasmanian Court of Criminal Appeal
    Accusations of infidelity’ – ‘Aggravated burglary’ – ‘Appeal against sentence’ – ‘Community protection’ – ‘Extensive criminal history’ – ‘Home invasion’ – ‘Manifestly excessive or inadequate’ – ‘People affected by substance misuse’ – ‘People who are homeless’ – ‘People who are pregnant’ – ‘Sentence’ – ‘Sentencing


    Incident 1: Aggravated burglary x 1, assault x 1, associated summary offences;

    Incident 2: evading police x 1, dangerous driving x 1, associated summary offences.

    Proceedings: Appeal against sentence.

    Facts: The accused man appealed the sentences imposed by Brett J for offending arising out of two separate incidents. The first incident was of violent offending including aggravated burglary and assault towards his then domestic partner (pregnant with a former partner’s child) and the violent invasion of the home of people with whom they were staying during a period of homelessness. The second incident related to the accused’s attempts to avoid arrest for the first incident by engaging in dangerous driving while under police pursuit. The accused had an extensive criminal history “which manifests in persistent and serious violent offending” and “a lengthy history of traffic offending, including a number of convictions for disqualified driving, and convictions for evading police and negligent driving”. Brett J noted that the only factors which could be taken into account in the accused’s favour were his pleas of guilty and the principles of totality. The appellant argued that the 18-month delay between his arrest and sentence should have been taken into account in mitigation.

    Issue: Were the sentences imposed (7 years total term of imprisonments, eligible for parole after 5 years, together with a driving disqualification for an aggregate of 6 years from the date of release) manifestly excessive?

    Decision and Reasoning: Appeal dismissed.

    Aggravating circumstances related to the first incident included:

    • The aggravated burglary took the form of a very frightening home invasion.
    • The victim of the assault was a pregnant woman.
    • It was a prolonged assault.
    • It amounted to domestic violence. [11]

    Aggravating circumstances in relation to the dangerous driving included:

    • The crime occurred on a Monday afternoon, when it was likely that there would be motorists and pedestrians on the streets of Penguin.
    • A number of drivers had to swerve to avoid collisions.
    • A number of pedestrians, including an elderly woman, were crossing roads when the appellant drove towards them.
    • A number of police officers were involved in intercepting the appellant.
    • The appellant drove for about 7 kilometres when evading the police.
    • He ignored emergency lights and sirens.
    • He continued to drive after the vehicle's tyres were deflated.
    • He was a disqualified driver. [12]

    The appellant was always likely to receive a term of imprisonment greater than the 18-month delay, negating any mitigation this factor might grant. [13]

    Blow CJ, Jago J and Martin AJ observed:

    ….it cannot be said the impugned sentences, separately or in the aggregate, were out of proportion to the seriousness of the appellant's offending, particularly since provision was made for him to be eligible for parole two years before the expiration of the last sentence. [25]

  • Gordon v Tasmania [2020] TASCCA 17 (2 December 2020) – Tasmanian Court of Criminal Appeal
    Appeal against sentence’ – ‘Exposing children to domestic and family violence’ – ‘Female perpetrator’ – ‘Manifest excess’ – ‘People affected by substance misuse’ – ‘People affected by trauma’ – ‘People with mental illness’ – ‘Traumatic childhood’ – ‘Verdins principles

    Charges: Wounding x 1; Common assault x 2.

    Proceedings: Appeal against sentence.

    Facts: The female appellant had a traumatic childhood, being sexually abused by her father and exposed to domestic and family violence. She had a history of mental illness (including depression, borderline personality disorder and post-traumatic stress disorder), substance misuse (she had ceased drug use but was drinking heavily at the time of the offending), and a lengthy record of offending. The offences occurred during the course of an argument between the appellant and her mother, and related to feelings of love/betrayal the appellant felt towards her mother for her childhood. The appellant cut her mother’s fringe with a knife and forced her head back onto the couch. She put her mother in a headlock and cut across her neck. The appellant threatened to stab a neighbour while holding two knives. The appellant was sentenced to 2 years imprisonment. The sentencing judge determined not to make an order that the appellant was eligible for parole. The appellant was made the subject of a community correction order for 12 months.

    Grounds of appeal:

    1. The sentence was manifestly excessive.
    2. The sentencing judge erred in fact and/or law in determining that an order for parole eligibility ought not be made.

    Held: The appeal was allowed on ground 2 and the appellant re-sentenced.

    Ground 1: There was sufficient evidence in the forensic psychiatrist’s report to establish a connection between the appellant’s impaired mental functioning and its contribution to the offending: 6 Verdins principles discussed at [27]-[33], [39]-[46] and [47]-[50]. Nevertheless, the 2 year head sentence could not be said to be manifestly excessive. It was not outside the range available to the sentencing judge. The appellant’s traumatic childhood, presence of mental disorders, and the relationship issue which lay at the heart of the offending were more appropriately taken into account in whether relief ought to be afforded in relation to the service of 2 years’ imprisonment (at [53]-[56]).

    Ground 2: The appellant alleged that the sentencing judge misapplied certain material relevant to parole. However, the court declined to take the alleged factual errors further, instead allowing the appeal on other grounds (at [57]-[64]).

    The failure to provide some relief from the full force of 2 years imprisonment was unreasonable and plainly unjust. The circumstances of the offences/offender called for some individualisation, these being: “the appellant's background of sexual abuse, her nature and extent of her illnesses, the underlying explanation for the attack on her mother, her remorse and the prospects of rehabilitation with sustained psychological therapy” (at [78]). The appellant was re-sentenced to 2 years’ imprisonment, 8 months suspended on conditions including supervision of a probation officer in relation to drug/alcohol treatment, and undergoing medical, psychological or psychiatric assessment or treatment.

  • Tatnell v Tasmania [2020] TASCCA 13 (7 August 2020) – Tasmanian Court of Criminal Appeal
    Appeal against conviction’ – ‘Assault’ – ‘Evidence’ – ‘Prior inconsistent statements’ – ‘Strangulation’ – ‘Trauma informed judicial practice

    Charges: Assault x 1.

    Proceedings: Appeal against conviction.

    Facts: The male appellant was charged with 3 counts of assault against his wife during the course an argument. A jury found the appellant guilty of the first count, which included strangling his wife and punching the wall above her head, but not guilty of the other counts. The trial judge imposed a wholly suspended sentence of 12 months’ imprisonment and made a community correction order.

    Grounds of appeal: Whether inconsistencies between the complainant’s description of the relevant events in evidence and that provided to police made the jury’s verdict unsafe and unsatisfactory.

    Held: Appeal was dismissed.

    The jury was entitled to accept the complainant’s explanation of the inconsistencies. This was particularly so given the jury’s advantage of hearing the complainant give evidence and in the context of all the evidence (including objective evidence of strangulation). The jury’s acceptance of this evidence was sufficient to support the verdict of guilt on count 1.

  • Parker v Tasmania [2020] TASCCA 9 (12 June 2020) – Tasmanian Court of Criminal Appeal
    Appeal against sentence’ – ‘Guilty plea’ – ‘History of abuse’ – ‘People affected by alcohol misuse’ – ‘Physical violence and harm’ – ‘Statistics’ – ‘Terminally ill victim’ – ‘Vulnerable victim

    Charges: Assault x 2

    Case type: Second appeal against sentence

    Facts: This is a second sentencing appeal by the appellant man in respect of 2 counts of assault on his female partner (see Parker v Tasmania [2019] TASCCA 16 (8 October 2019) . He plead guilty and his plea to one count was accepted in satisfaction of a charge of causing grievous bodily harm. The appellant was sentenced by Blow CJ to 4 years’ and 3 months’ imprisonment, with a non-parole period of 2 years, 9 months. He appealed on grounds the sentence was manifestly excessive and that the sentencing judge erred in determined the factual basis for sentence. Blow CJ resentenced him to 3 months longer than the original sentence with the same non-parole period. The offences were recorded as family violence offences.

    The appellant struck the complainant, a terminally ill cancer patient, in the head with a teapot, and then pushed her, causing her to fall over. The fall caused the complainant’s hysterectomy wound to split open and her bowel to protrude. He had been drinking prior to the assaults. The appellant’s version of events differed from the complainant’s; the complainant’s sworn evidence was found to be more reliable.

    The appellant’s lengthy criminal history included prior convictions for assault and for breaching family violence orders for violence towards an earlier partner and the current complainant. Factors in the appellant’s favour included the fact that he pleaded guilty, phoned the ambulance and did not flee from the scene, and admitted what he had done to the 000 operator and police. He left the complainant alone and bleeding to ask a neighbour for a cigarette. He recognised his violence was associated with his alcohol problem and sought treatment. The complainant was vulnerable and suffered terrible physical and mental health consequences as a result of the appellant’s actions ([11]). Aggravating features included that the assaults occurred in the context of a domestic relationship, the complainant suffered from a terminal illness and the appellant was her carer ([12]).

    Ground: The second sentence was manifestly excessive.

    Held: Appeal dismissed, Estcourt, Pearce and Geason JJ concurring.

    Estcourt J considered Gregson v Tasmania [2018] TASCCA 14 , a case which considered comparative sentencing statistics. In considering the "yardstick" of the available statistical and comparable sentencing data, Estcourt J held that the sentence imposed on the appellant was "heavy", but not plainly unjust or unreasonable. The appellant was sentenced on the basis that he did not intend or foresee the serious harm to the complainant, but the consequences of the assault were nevertheless egregious ([29]). As the sentencing judge noted, the situation was worse than that of a drunken man assaulting a terminally ill partner, because the appellant knew that the complainant had an untreated abdominal hernia. This made the breach of trust even greater ([30]).

    Pearce J did not characterise the sentence as "heavy". Whilst the appellant did not intend or foresee the terrible harm caused, the likelihood of such harm ought to have been obvious to any reasonable person with knowledge of the complainant’s vulnerability ([35]).

    Geason J agreed with Estcourt J’s characterisation of the sentence as "heavy". His Honour noted that "this Court has on a number of occasions emphasised the importance of general deterrence in sentencing for offences involving the infliction of violence on the vulnerable", which frequently occur in a domestic or relationship setting, and that "[s]uch conduct requires a sentence that reflects the insidious nature of such offending, and the importance of protecting those vulnerable to such harm" ([41]).

  • Director of Public Prosecution v Johnson [2020] TASCCA 4 (8 April 2020) – Tasmanian Court of Criminal Appeal
    Alcohol misuse’ – ‘Appeal against sentence’ – ‘Attempt to interfere with witness’ – ‘Coercive control’ – ‘Controlling, jealous and obsessive behaviours’ – ‘History of abuse’ – ‘Manifestly inadequate’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Stalking.’ – ‘Suffocation’ – ‘Use of family members

    Offences: Assault x 2; Stalking x 1; Attempt to interfere with a witness x 1; Breaching a family violence order x 15; Attempting to breach a family violence order x 23

    Proceedings: Crown appeal against sentence

    Issue: Whether the sentence was manifestly inadequate

    Facts: The male respondent and female victim were in a relationship and had moved in together. The respondent was arrested for breaches of a protective order made for the benefit of the victim, sentenced and a 12-month family violence order was imposed consisting of full non-contact conditions. Nine days later, the respondent made contact with the victim in breach of the order, promising he had changed. The respondent called the victim telling her he had paid for a hotel for the two of them to meet. The victim agreed and when she arrived, they had consensual sexual intercourse. They then consumed a fair amount of alcohol. Later that evening, the victim received a text message from a male friend. The respondent became aggressive and claimed the victim had been cheating. He pushed her head onto the bed and struck her face four times, pulling a clump of hair out. The respondent went to the bathroom for a few minutes and when he returned, he pushed the victim’s face into a pillow and sat on her back so that she couldn’t move. The victim thought she was going to die. The respondent eventually let her go but grabbed her arm and told her she would never see her children again. The victim told the respondent that she had to use the bathroom; she went inside, locked the door and sat in the shower. The respondent banged on the door, but the victim came out when he stopped. She asked to be allowed to sleep; the respondent allowed her to while he was holding her arm.

    The next morning, the victim called her sister to tell her what had happened, asking her to pick her up. The victim reported the matter to police. Over the next few days, the respondent sent torrents of text messages and made numerous calls to the victim, which ranged from threats to pleading. He later had his father pass two letters onto the victim, asking her to withdraw the charges and refuse to give evidence. The victim refused. The respondent was convicted and sentenced to two years’ imprisonment with a non-parole period of twelve months.

    Judgment: The court allowed the appeal, finding the sentence to be manifestly inadequate in that it "[fell] short of that required to adequately respond to the gravity of the offending" [41], and resentenced the respondent to three years’ imprisonment with a non-parole period of 18 months. The court held that "Apart from the fact that the offending occurred in breach of court orders intended to protect a vulnerable female, the respondent's conduct involved acts of significant persistent violence including suffocation, followed by persistent attempts to have her drop the charges or refuse to give evidence; and stalking" [31]. The court emphasised that "Offending occurring in the privacy of the home, unseen, and away from help must be met with a penalty that serves as a warning to others that detection and conviction will result in severe consequences" [31].

    The court condemned suffocation, providing that "The fact that the respondent's conduct included suffocation has significance to the assessment of the objective seriousness of the offending. Suffocation should be treated with the same level of seriousness as is afforded strangulation or throttling. Such conduct is inherently dangerous, and capable of causing serious consequences within a very short period. It renders victims incapable of acting to protect themselves … it is a form of dominance and control which has the potential to cause grave psychological harm, serious injury and even death" [33]. The court held this to be an aggravating factor, along with the fact that the offending occurred just 12 days after the respondent was released and that the respondent attempted to interfere with prosecution of the case [34]-[35]. The court noted that "the objective seriousness of the offending was very high encompassing serious assaults in circumstances where help was not available, followed by a series of attempts to avoid prosecution. Because that sort of interference has a probability of success, to the detriment of the safety of the victim and the frustration of community attempts to protect the vulnerable, gaol should be the inevitable consequence of such conduct" [37].

    The court concluded that:

    "the prosecution of family violence matters is notoriously difficult due to the vulnerability of victims to interference and pressure from perpetrators, with whom they will often have been in a relationship … the circumstances of this case make it an appropriate vehicle through which to assert a general principle that conduct directed at interfering in the prosecution of family violence matters so significantly erodes the administration of justice that it should attract a heavy sentence of imprisonment. This is important to encourage community participation in reporting such violence, and to provide confidence in the processes which follow reporting. The importance of this principle prevails over the matters referred to by the respondent in respect of his rehabilitation and parole" [55]. And further, "Prosecutions are the cornerstone of the system for the protection of victims. They serve to expose the offending, protect the victim and afford an opportunity for intervention directed towards the rehabilitation of the offender" [54] and that "A message needs to be sent to violent men in the community that serious assaults on females and intimidatory and stalking behaviour, and behaviour designed to persuade a witness not to give evidence, will result in considerable periods of imprisonment" [74].

  • Hardwick v Tasmania [2020] TASCCA 2 (20 March 2020) – Tasmanian Court of Criminal Appeal
    Assault’ – ‘Assault of child’ – ‘Children’ – ‘Error in assessment and use of evidentiary material relevant to sentence’ – ‘Manifestly excessive’ – ‘No prior convictions’ – ‘Non-fatal strangulation’ – ‘Parenting dispute’ – ‘People affected by alcohol misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Separation’ – ‘Spousal assault risk assessment guide’ – ‘Suicide threat’ – ‘Trespass

    Charges: Aggravated burglary and assault x 1; Common assault x 1.

    Case type: Appeal against sentence

    Facts: The appellant man pleaded guilty to aggravated burglary and assault, and to a summary offence of common assault. He was sentenced to 2 years’ and 6 months’ imprisonment on various conditions. The crimes were committed in the context of a domestic relationship against his wife (the victim) and teenage son. The appellant and victim had separated after 22 years of marriage, and had 3 children. On the day of offending, the appellant attended the family home where the victim and children lived, having been denied contact with the youngest child, after having consumed a considerable amount of alcohol. He smashed into the home and choked and punched his wife and teenage child. The sentencing judge was satisfied that the appellant was not coping well with the dissolution of the marriage. The appellant had attempted suicide, and the family was concerned about his psychological state. He breached an agreement that he was not to attend the home without the victim’s consent, and was therefore a trespasser. The sentencing judge made a family violence order and directed that the crimes and summary offence be recorded on the appellant's criminal record as family violence offences.

    Issue: The appellant appealed against the sentence on the ground that it was manifestly excessive. It was also contended that the sentencing judge erred in his assessment and use of evidentiary material relevant to sentence. Underlying much of this submission was the complaint that the sentencing judge should have relied on a pre-sentence report which concluded that the appellant presented ‘a low risk of future family violence’. The appellant also submitted that the sentencing judge misused or gave undue weight to statements in the Victim Impact Statements, in particular, the description of the effects of the act of choking.

    Held: The learned judge’s sentencing considerations were discussed again on appeal ([20]-[27]). The appellant had not previously committed any criminal offences and had a "significant potential for employment". Whilst the offending was not premeditated, the medical evidence stated that he was suffering from an adjustment disorder at the time of the offending. As to the likelihood of future violence, a psychologist used a ‘structured professional judgment tool’ (SARA) designed to predict intimate partner violence recidivism. Based on the SARA, the appellant was assessed at being at moderate risk of further violence towards the victim. The combination of the SARA and other ‘red-flag’ risk factors led the psychologist to conclude that the appellant still posed a risk to the victim. Further, notwithstanding his guilty plea and cooperation in the proceedings, the appellant lacked insight and remorse and minimised the severity of his conduct. There was a need for personal deterrence as his personality traits, such as narcissism, predisposed him to having a ‘severe explosive reaction to the relationship separation’.

    The appellant contended that the sentencing judge should have accepted the assessment of the probation officer in the pre-sentence report over the SARA. The Court held that the sentencing judge was not bound to accept the officer’s assessment or the reliability of the appellant’s statements to the officer ([36]). The officer was not provided with the SARA conducted by the psychologist, and took the appellant’s statements at face value ([37]). The officer’s assessment therefore provided a less reliable basis for findings relevant to sentence than the SARA ([39]-[40]).

    Further, there was no basis for concern that the sentencing judge misused the Victim Impact Statements. In his sentencing remarks, he noted the victim's description of the terror she experienced while being choked and said it was "clear" that she perceived the choking as a "potentially lethal attack and felt powerless" to stop the appellant. He also described the violence as "unexpected, explosive, and unrestrained", and concluded that the assault was "brutal" with the potential to inflict serious injury ([50]). In relation to strangulation, the sentencing judge found:

    "Attempted strangulation which does not result in death or physical injury, can still have long-term physical and psychological impact, and leave the victim susceptible to ongoing symptoms. In criminal assault such acts are generally used to subdue and force compliance by the victim without any real thought being given to the danger inherent in such conduct. Those dangers were clearly apparent in your actions in this case. Your rage and lack of restraint meant that you had no real capacity to judge or moderate your attack, and the complainant was therefore in real danger of serious injury or worse."

    The Court of Appeal held that there was ample foundation in the evidence to support the sentencing judge’s remarks. His Honour correctly regarded the choking as a "particularly concerning aspect" of the assault, and appropriately considered the dangers attached to the appellant’s conduct as part of his overall assessment of the gravity of the offending ([52]-[53]). He also observed that the appellant’s conduct "constituted an extremely serious episode of family violence" ([63]). The Court of Appeal acknowledged that the choking of female victims by male offenders is understood by criminal courts as a "prevalent and dangerous feature of violence perpetrated in domestic circumstances" ([53]). Victims of domestic violence are vulnerable and the crimes are often committed in breach of the sanctity and safety of the family home ([64]). It referred to DPP v Foster and Gregson v Tasmania as support for the propositions that women in domestic circumstances are particularly vulnerable and violent behaviour by men towards women "must be condemned and discouraged" ([65]).

    Consequently, the appeal was dismissed. Notwithstanding the appellant’s prospects of successful rehabilitation, he engaged in dangerous and distressing conduct against his wife and child and remains an ongoing risk of future violence ([66]-[70]).

  • Parker v Tasmania [2019] TASCCA 16 (8 October 2019) – Tasmanian Court of Criminal Appeal (This decision was the subject of an unsuccessful appeal - Parker v Tasmania [2020] TASCCA 9 (12 June 2020))
    Appeal against sentence’ – ‘Physical harm and violence

    Charge(s): Assualt; Causing grievous bodily harm

    Proceedings: Appeal against sentence


    • 1a. The sentencing judge erred by making factual findings inconsistent with the unchallenged assertions of fact by the defence;
    • 1b. The findings of fact made were objectively more serious than those asserted by the defence and led to the imposition of a sentence that was manifestly excessive
    • 2. The sentence was manifestly excessive.

    Facts: Appellant man pleaded guilty to two counts of assault against his then female domestic partner. The plea of one of the counts was accepted by the Crown in satisfaction of a charge of causing grievous bodily harm. The appellant was convicted and sentenced to four years and three months imprisonment with a non-parole period of two years and nine months.

    The appellant and complainant had been in a domestic relationship for about five years. The complainant was diagnosed with terminal ovarian cancer in May 2017, whilst the appellant was in prison for driving offences from April to August 2017. The complainant had treatment and on the appellant’s release he was her carer. She had a number of hospitalisations and had had a hysterectomy in July. On 27 September the appellant and complainant had a prolonged argument after he had been drinking all day. The appellant struck the complaint in the back of the head with a teapot during the course of an argument. He then pushed the complainant over, causing her to strike her head on a hard item of furniture. The fall caused her surgical wound to rupture and her bowel to protrude. The complainant required immediate surgical treatment and was later assessed that have suffered an evisceration of her small bowel, an abrasion to her nose, a laceration to the back of her head, grazes to her hands and left knee, and was developing bruises [8]. The appellant was heavily intoxicated at the time of the offence.

    Judgment: The appellant’s sentence was quashed and the matter was remitted to the sentencing judge for resentencing.

    Counsel for the appellant submitted that "there were a number of inconsistencies between the facts asserted to the sentencing judge by the Crown and the defence" [11]. Justice Pearce noted that the only difference that was of consequence was the immediate circumstances of the assaults as the circumstances would inform the objective gravity of the assaults and the appellant’s culpability. Reviewing the sentencing judge’s reasons, Pearce J found that "the sentencing judge either did not realise, or ignored, the inconsistencies" between the versions [15]. By ignoring these inconsistencies, the "exercise of the sentencing discretion miscarried" [22]. Given that the sentencing judge imposed sentence on the basis of disputed facts, the first ground of appeal succeeded [22]. Although the first ground succeeded, Pearce J provided that "[n]o assessment of the remaining grounds of appeal asserting that the sentence is manifestly excessive can be undertaken until the proper factual basis of sentence is determined" [23].

  • Director of Public Prosecutions v Foster [2019] TASCCA 15 (12 September 2019) – Tasmanian Court of Criminal Appeal
    Appeal’ – ‘Coercive control’ – ‘Domestic relationship’ – ‘Family violence order’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Strangulation

    Charges: 5 x assault; 1 x demanding property with menaces with intent to steal

    Case type: Appeal against sentence

    Facts: The respondent pleaded not guilty to 5 counts of assault and 1 count of demanding property with menaces with intent to steal. The offences committed by the respondent occurred during the course of a domestic relationship. He was found not guilty of 3 counts of assault, but guilty of the remaining counts. The learned sentencing judge sentenced the respondent to 16 months’ imprisonment with a non-parole period of half of that term. His Honour also made a Family Violence Order.

    The DPP appealed against the sentence on the sole ground that it was manifestly inadequate. The appellant submitted that the respondent committed 2 serious assaults, both of which were prolonged and involved strangulation. The crime of demanding property with menaces with intent to steal was arguably serious as it was committed during a prolonged attack and involved threats to kill the complainant and her children. It was also submitted that these matters were not isolated as they occurred in the context of a violent and abusive relationship ([13]).

    Issue: The question for the Court was whether the sentence was manifestly excessive or inadequate.

    Held: The sentence of 16 months’ imprisonment was found to be manifestly inadequate, having regard to the seriousness of the offending in the context of the domestic relationship ([42]). Estcourt J accepted that appellant’s submissions as ‘undoubtedly correct’ ([19]). Each incident involved ‘vicious and cowardly attacks by the respondent on a woman’. The respondent had convictions for violent offences, including ones of family violence. Citing an article by Heather Douglas and Robin Fitzgerald, his Honour observed that ‘strangulation is a form of power and control that can have devastating psychological long-term effects on its victims in addition to a potentially fatal outcome’ ([26]). It can cause loss of consciousness and lead to a sudden death ([27]). Further, the respondent’s prior convictions indicated that the present offences were not isolated or unusual. He did not plead guilty and did not show any remorse ([28]). His Honour allowed the appeal, set aside the sentencing order and imposed a new sentence of 2 years and 6 months’ imprisonment, with parole eligibility after serving half of that sentence. The Family Violence Order made by the learned sentencing judge was undisturbed ([36]-[37]). Brett J and Marshall AJ agreed with Estcourt J’s reasons.

  • Gregson v Tasmania [2018] TASCCA 14 (31 August 2018) – Tasmanian Court of Criminal Appeal
    Coercive control’ – ‘History of domestic violence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Vulnerable grounds’ – ‘Women

    Charges: Assault x 2.

    Appeal type: Appeal against sentence.

    Facts: The appellant had violently attacked his vulnerable female partner with whom he was in a domestic relationship. The parties were arguing, mostly about the appellant’s intoxication and his lifestyle, characterised by his drug and alcohol abuse. The appellant delivered numerous forceful punches to the victim’s face, and shortly afterwards, returned and delivered more forceful blows to her head. She did not sustain any fractures, but the conduct was unprovoked and caused her to suffer nightmares. Estcourt J sentenced the appellant to two years’ imprisonment with a non-parole period of 18 months.

    Issues: Whether the sentence was manifestly excessive.

    The appellant submitted that:

    • He was sentenced during ‘women’s month’ which may have influenced the sentencing judge’s decision.
    • The sentencing judge failed to take into account that immediately before the second assault, the appellant was ‘assaulted by the victim with a large serrated-edge kitchen knife’, and acted in ‘self-defence’.
    • He should have been sentenced in the Magistrates Court.

    Decision and reasoning: The appeal was dismissed. The Court agreed with the sentencing judge’s description of the offending as a ‘cowardly attack’ and his observation that ‘Vulnerable women such as the complainant are entitled to the protection of the law against brutal partners, and the community expectation is that such protection will be provided by the Courts’ ([29]). Although he did not use a weapon or kick the victim, the nature and strength used was not insignificant. The Court held that although the appellant should not be re-punished for his prior criminal conduct, he was not entitled to any leniency. The Court noted that the appellant had a history of violence towards women. The prevalence of this type of conduct impacts on the community at large. Women in domestic circumstances are particularly vulnerable to the abuse of power and breach of trust by violent male partners (Director of Public Prosecutions v Karklins [2018] TASCCA 6 [54]–[60]). Women who become victims in these circumstances, and other potential victims in the community, are entitled to such protection as the law can provide by the imposition of sentences that will act as both a personal and general deterrent ([37]). Whilst the sentence of two years’ imprisonment was towards the upper end of the appropriate range of the sentencing discretion, it was not manifestly excessive, harsh or unjust. Having regard to the appellant’s record of prior offending and disregard for court orders, the sentencing judge was found to be lenient in fixing a non-parole period, and the non-parole period of 18 months was within the range of sentencing discretion.

  • Director of Public Prosecutions v Karklins [2018] TASCCA 6 (20 April 2018) – Tasmanian Court of Criminal Appeal
    Appeal against sentence’ – ‘Coercive control’ – ‘Damaging property’ – ‘Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Listening to Victims’ – ‘Physical violence and harm’ – ‘Pregnant people’ – ‘Sentencing’ – ‘Systems abuse’ – ‘Vulnerable groups

    Charges: Assault x 1; Assault on a pregnant woman x 3; Attempt to interfere with a witness x 5; Destroying property x 1.

    Appeal type: Prosecution appeal against sentence.

    Facts: The respondent and complainant had been living together for 5 months with the complainant’s son ([6]). The complainant was 4 weeks pregnant at the time of the offences ([7]). The respondent threatened to leave the complainant, but the complainant asked him to stay ([9]-[10]). The respondent threatened to kill her and the baby. He headbutted the complainant and strangled her three times, causing her to lose consciousness twice ([13]-[16]).

    The respondent was arrested and on remand. The respondent told a friend to tell the complainant that if she retracted her statement, he would ‘consider getting back with her’ ([22]). The complainant did so ([23]). The respondent was sentenced to 1 year and 10 months’ imprisonment with a non-parole period of 11 months.

    Issues: Whether the sentence was manifestly inadequate.

    Decision and Reasoning: Geason J emphasised aggravating features of the case, such as the fact that the respondent had the opportunity to reflect on his conduct between each attack ([55]), that he did not seek help for the complainant ([51]), that the crimes were committed in the context of a domestic relationship ([54]), and that the complainant was unable to defend herself ([50]). Mitigating considerations included the fact that the respondent pleaded guilty early ([61]).

    In relation to the charges of interfering with a witness, Geason J at [56] remarked on the importance of such charges in aiding the administration of justice in relation to domestic violence:

    The respondent's attempts to frustrate his prosecution should also be seen as particularly serious matters. They were a cynical exercise in emotional blackmail … Domestic violence typically occurs behind closed doors, making detection inherently difficult. Relationship dynamics frequently militate against a prosecution. Conduct directed at interfering with the prosecutorial process undermines the system intended to afford protection to victims of violence, making an inherently difficult process more so … It should be accepted in cases of family violence that attempts to interfere with the due administration of justice by the means of emotional manipulation of a vulnerable victim is a serious matter the consequences of which will always be severe.

    Geason J referred to R v Kilic [2016] HCA 48, where the High Court stated at [21] that sentencing practices for offences involving domestic violence may ‘depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations’. His Honour at [92] subsequently justified interfering with the sentence on the basis that:

    Domestic violence is properly regarded as a most serious form of offending, frequently hidden from view, and thus difficult to detect. The court has a symbolic function. Censure for domestic violence should be communicated through the sentences which are imposed.

    His Honour cautioned against giving weight to the complaint’s forgiveness of the respondent ([77]). His Honour questioned the sentencing judge’s generous characterisation of the respondent’s conduct during the assault ([83]-[86]).

  • Price v Tasmania [2016] TASCCA 22 (6 December 2016) – Tasmanian Court of Criminal Appeal
    Assault’ – ‘Extraordinary case’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Public protection’ – ‘Unlawful assault causing bodily harm

    Charge/s: Assault x 3; unlawful act intended to cause bodily harm x 1.

    Appeal Type: Appeal against sentence.

    Facts: The male appellant and the female complainant were in a relationship. The three assault counts occurred in August 2014 and April 2015 after the appellant had been drinking. The appellant punched the complainant in the face, choked her, and fractured her wrist. The final count occurred in June 2015 when, after an argument, the intoxicated appellant threw petrol on the complainant and ignited her. The complainant’s daughter heard the screams and rescued her mother. The appellant was sentenced to ten years imprisonment with a non-parole period of six years.

  • Daley v State of Tasmania [2016] TASCCA 10 (22 August 2016) – Tasmanian Court of Criminal Appeal
    Aggravating factor’ – ‘Children’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relevance of impact on children

    Charge/s: Murder x 2.

    Appeal Type: Appeal against sentence.

    Facts: The 60 year old appellant murdered his former partner, 31 year old Meagan Wilton, and her new partner, 34 year old Benjamin Eyles, by shooting them with a shotgun. The appellant and Ms Wilton had a 21 month old son together, and Ms Wilton had two other girls, aged 12 and 9. Ms Wilton’s youngest daughter and the appellant’s son were in the house at the time of the murders. After leaving the premises, the appellant tried to commit suicide by shooting himself in the head. He suffered brain damage, lost the ability to walk, and required visual and hearing aids. He pleaded guilty and was sentenced to 45 years imprisonment, with a non-parole period of 25 years.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. Estcourt J provided the lead judgment, with Blow CJ and Brett J agreeing but providing additional comments. Relevantly, Blow CJ stated that while the punishment here was significant and that there were a number of mitigating factors in the circumstances, these carried little weight in light of the aggravating factors of this case. As per His Honour: ‘[t]hese were deliberate killings. They were premeditated. They were motivated by vindictiveness towards a former partner’ (see [4]). Moreover, ‘[t]his was a case in which the impact of the killings on survivors [was] particularly significant’. The children who were present in the house could suffer long-term psychological or psychiatric consequences (see [5]). Further, the impact of the crime would be felt by family members raising the children, and police officers who worked on this case.
  • Devine v Tasmania [2015] TASCCA 19 (26 August 2015) – Tasmanian Court of Criminal Appeal
    Breach of domestic violence order’ – ‘Damaging property’ – ‘Deterrence’ – ‘History of abuse’ – ‘Manifestly excessive’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Sentencing’ – ‘Vulnerable - new partner

    Charges: Aggravated burglary, Unlawful act intended to cause bodily harm, Breach of family violence order, Motor vehicle stealing, Destroying property

    Appeal type: Appeal against sentence

    Facts: The appellant and the protected person had been in a domestic relationship that ended towards the end of 2012. As a result of the appellant threatening to cut her throat and burn her house down, the protected person moved away from Hobart. Early in 2015, her house was burnt down, although no one was charged. The protected person then moved back to Hobart and entered into a new relationship. The appellant threatened her new partner, resulting in a family violence order restraining him from approaching the protected person.

    On the day of offending, the appellant went to the protected person’s home, kicked the front door, smashed a window, drew a knife and threatened to kill her. The appellant then lunged towards the protected person who cut her hand as a result of trying to stop him. When the protected person’s partner came to assist, the appellant was holding the knife to the protected person’s throat and threatened ‘Why shouldn’t I kill him’. When her partner attempted to separate them, the appellant stabbed him in the stomach. In relation to this conduct the appellant was charged and pleaded guilty to one count of aggravated burglary, two counts of committing an unlawful act intended to cause bodily harm, three breaches of a family violence order, one count of motor vehicle stealing, and one count of destroying property. He was sentenced to seven years’ imprisonment with no non-parole period.

    The appellant had a long history of dishonest and violent offending commencing from childhood. When given the benefit of suspended sentences, bonds and parole in relation to these offences, the appellant breached them. A psychologist’s report noted the appellant had extremely low to borderline intellectual functioning and could be considered to have a mild intellectual disability. This was substantially the result of substance abuse in the view of the psychologist. The sentencing magistrate did not consider this as a mitigating factor, concluding there was a significant risk he would re-offend and therefore there was a need for specific deterrence.

    Issue: Whether the sentence was manifestly excessive due to the magistrate failing to order a non-parole period.

    Decision and reasoning: The appeal was dismissed.

    Tennent J, with whom Porter and Pearce JJ agreed, held that the issue of whether or not to order a parole period is a matter for the discretion of the sentencing judge. His Honour took into account the relevant factors including the appellant’s offending history and disregard for orders in refusing to grant a non-parole order. The psychologist report did not suggest rehabilitation was likely. The sentencing judge therefore did not err in failing to order a non-parole period and the sentence was not manifestly excessive.

  • Connelly v Tasmania [2015] TASCCA 15 (29 June 2015) – Tasmanian Court of Criminal Appeal
    Aggravating factor’ – ‘Arson’ – ‘Attempted murder’ – ‘Denunciation’ – ‘Double jeopardy in sentencing’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Sentencing

    Charges: Attempted murder (two counts)

    Appeal Type: Appeal against sentence

    Facts: The appellant’s relationship with his wife deteriorated after she told him that she had a sexual relationship with another man. She moved out of the family home. The appellant attempted to kill his two sons by blowing up the family car when they were sitting in it with him. He was unsuccessful but he caused an explosion and a very fierce fire. His two sons suffered life-threatening burns. Their injuries are ongoing and they will have ‘functional and cosmetic problems for life’. They are at risk of ongoing psychological harm. The impact on their mother was devastating. The trial judge was satisfied that the appellant intended to kill the boys to ‘deprive his wife of them’ or to ‘spite his wife’ ([29]). He was sentenced to 20 years’ imprisonment with a non-parole period of 15 years.

    Issue: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld in respect of the non-parole period. Estcourt J (with whom Tennent J agreed) held that the head sentence of 20 years was not excessive. The offending was serious and both victims were young children. However, Estcourt J noted that there was one act that impacted both victims. While the sentence encompassed the entirety of the appellant’s criminal behaviour, he should not be sentenced for his conduct twice.

    Counsel for the appellant submitted that even if the head sentence was not excessive, the non-parole period was excessive because of factors such as his lack of prior relevant offending, the unlikelihood of any re-offending ‘given the crime was directly related to his family circumstances’ and the fact that ‘it could not be said that the appellant’s “incorrigibility” justified the setting of the non-parole period at 75% of the head sentence’ ([38]). Estcourt J (Tennent J agreeing) accepted these submissions notwithstanding the appellant’s almost complete lack of remorse and reduced the non-parole period to 12 years.

    Wood J agreed with Estcourt J’s reasoning with respect to the head sentence but dissented in regards to the non-parole period. At [7]-[21], her Honour engaged in general discussion about the applicable principles in determining the most appropriate non-parole period. Wood J then noted at [23] a number of considerations relevant to the nature of the crime. These included that it involved deliberate acts to kill two young children, the appellant’s ‘vindictive motive to inflict maximum anguish and emotional trauma upon his wife’, his son’s extensive injuries and degree of emotional suffering and physical pain, risks to their psychological well-being and the torment and harm suffered by his wife. It was appropriate for the sentencing judge to give effect to the aims of denunciation and retribution and, ‘the goal of assuaging informed moral outrage of the community, reasserting society's values and giving proper weight to the harm done to the victims’ ([24]).

  • Groenewege v Tasmania [2013] TASCCA 7 (26 July 2013) – Tasmanian Court of Criminal Appeal
    Arson’ – ‘Assault’ – ‘Course of conduct’ – ‘Denunciation’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Risk factor - separation’ – ‘Risk factor - strangulation’ – ‘Sentencing

    Charges: Arson, Assault

    Appeal Type: Appeal against sentence

    Facts: The appellant suffered from depression and became abusive and intimidating towards his wife. After she ended the relationship, the appellant became angry and upset. He cornered his wife in a shed, pushed her to the chest, grabbed her around the throat and squeezed for four seconds, causing her to become very fearful. The appellant asked to see his four children. His wife then walked with him to the car, got in and locked the doors before attempting to drive off and call the police. However, the appellant grabbed the vehicle and punched the window, which caused it to shatter. His wife then attended her children’s school. Meanwhile, the appellant poured methylated spirits onto the main bedroom of their house, set fire to the bed and left knowing the bed was on fire. The house was damaged beyond repair. An insurance claim was denied. The impact of the offending on the appellant’s wife and children was very significant. He was sentenced to four years and six months’ imprisonment, with a non-parole period of two years and nine months.


    1. Whether the sentence was manifestly excessive.
    2. Whether the trial judge erred by placing too much weight on general deterrence given the appellant’s mental health condition.

    Decision and Reasoning: The appeal was upheld in respect of issue 1.

    1. The appellant submitted that various mitigating factors existed ([39]) and that the sentence was outside the range of permissible sentences for arson. Further, the appellant submitted that the assault was brief and no physical harm was caused. The respondent conceded that the assault would not add to a sentence imposed for arson, but submitted that it was relevant as a course of conduct and to demonstrate the appellant’s attitude towards his wife ([44]). Porter J (with whom Wood J and Tennent J agreed) held that while the head sentence was very high, it was not outside the permissible range: ‘The appellant intentionally set fire to the house and intentionally caused its entire destruction. His motive for doing so was to exact some sort of vengeance on his estranged wife intending to destroy his wife's interest in the building and its availability as a home’…‘This was obsessive and possessive conduct, involving some violence, committed in the aftermath of a broken relationship. It is the type of conduct which simply cannot be tolerated’ ([52]-[53]).

      Nevertheless, the non-parole period was found to be excessive. Porter J noted that in considering the length of a non-parole period, the issue is whether the period makes the sentence manifestly excessive, ‘"sentence" in this context, being used in a broader sense’ ([56]). The non-parole period amounted to a little over 60% of the head sentence. Given factors such as the appellant’s prior good character, his mental health condition and apparent remorse ([60]), the non-parole period made the overall sentence manifestly excessive and was therefore reduced to one half of the head sentence.
    2. The appellant submitted that his psychiatric condition affected his ability to properly consider the consequences of his actions, such that it was inappropriate for general deterrence to remain a large consideration in sentencing. Porter J (with whom Tennent J and Wood J agreed) held that notwithstanding the psychiatric condition, mood disorders are reasonably common in the community. As such, the sentencing judge was correct to conclude that the appellant was, ‘an appropriate vehicle by which to convey a message to the general community about the seriousness and likely consequences of this type of offending’.
  • Enniss v Tasmania [2012] TASCCA 10 (2 October 2010) – Tasmanian Court of Criminal Appeal
    Assault’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Risk factor - strangulation’ – ‘Risk factor - weapon’ – ‘Sentencing’ – ‘Totality

    Charge: Assault (five counts)

    Appeal Type: Appeal against sentence

    Facts: The appellant lived intermittently with his partner (the complainant). The first count occurred when, during an argument, the appellant grabbed the complainant by the throat, forced her to the floor, punched her to the head multiple times and kicked her to the hip as she tried to stand up. The second assault occurred when the complainant was in her three-year-old child’s bed. The appellant pointed a knife at the complainant and threatened to stab her if she did not give him her phone (i.e. an assault by means of a threatening gesture). The child remained asleep throughout the incident. The next count occurred when the appellant kicked the complainant between the legs twice, which caused her to fall to the floor. The final count was again an assault by means of a threatening gesture and involved the appellant sharpening knives and threatening to kill or violently assault the complainant. The appellant was arrested but escaped on arrival at the police station and was not found until 10 days later. While the complainant did not suffer serious physical injuries, there were lasting psychological consequences for her and her daughter. The appellant had a significant criminal history. He was sentenced to three years’ imprisonment with a non-parole period of two years. Before being sentenced for these offences, he was sentenced to another 3 years’ imprisonment (with a two-year non-parole period) in respect of 50 unrelated offences. This resulted in an aggregate sentence of six years’ imprisonment with a four-year non-parole period.

    Issue: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld. ‘The ordeal that the appellant inflicted on his partner was horrific. He had many opportunities to desist from assaulting her, but did so over and over again, with their young daughter in the house. It was an unusually bad case of family violence. The only appropriate penalty was a significant cumulative sentence of imprisonment.’ ([20]).

    Counsel for the appellant submitted that the fact the appellant was unlikely to be granted parole (even if eligible) should have been taken into account in his favour. The Court rejected this argument, holding that this is not an appropriate consideration in determining the sentence. However, the magistrate imposed the two-year non-parole period for the assault offences so as to not impose a crushing sentence. If the head sentence of three years was ‘crushing’, a non-parole period should not be regarded as changing that situation because parole may not be granted. Given the length of the sentence in combination with the fact that the complainant suffered no physical injuries, the head sentence was disproportionate to the gravity of the offending and the aggregate term was also disproportionate. The appellant was re-sentenced for the assault offences to 18 months’ imprisonment with a non-parole period of 12 months.

  • Braslin v Tasmania [2011] TASCCA 14 (13 October 2011) – Tasmanian Court of Criminal Appeal
    Admission of guilt’ – ‘Arson’ – ‘Circumstantial evidence’ – ‘Directions and warnings for/to jury’ – ‘Physical violence and harm’ – ‘Risk factor - separation

    Charge: Arson

    Appeal type: Appeal against conviction

    Facts: The appellant was tried by jury and found guilty of arson purely on the basis of circumstantial evidence. It was alleged that he unlawfully set fire to the house of his former female partner. She gave evidence that the night before the fire the appellant slept over at her place. She and the appellant argued the next morning as she was leaving the property. He called her a ‘leg-opening slut’ and said that if she left he was going to burn the house down. She left and not long after received a phone call from the appellant who asked whether she was ‘warm enough’. She returned home to find the house on fire. Evidence was also given by a neighbour that he heard the appellant and his former partner arguing that morning for 10 minutes. He ignored the argument and did not claim to have seen the appellant on the morning of the fire.

    Before trial, the appellant pleaded guilty to breaching a family violence order on the day of the fire by approaching his former partner and calling her a ‘leg-opening cunt’. The Crown alleged that this amounted to an admission of guilt. At trial, the appellant asserted that he did not realise the significance of this date and that he had used those words but not on the day of the fire. The appellant’s younger sister provided the appellant with an alibi. She said he was asleep at their mother’s place on the morning of the fire.

    Issues: Some of the grounds of appeal were:

    1. Whether the trial judge failed to correct the prosecution’s lack of adherence to the ‘rule’ in Browne v Dunn.
    2. Whether the trial judge failed to give an adequate warning in relation to the neighbour’s voice identification evidence.

    Decision and Reasoning: The appeal was upheld and the conviction set aside.

    1. ‘In the context of a criminal trial, the "rule" in Browne v Dunn (1893) 6 R 67 requires defence counsel to put to a Crown witness in cross-examination the case upon which the accused proposes to rely, to the extent that it is proposed to contradict the evidence of the Crown witness. Similarly, if it is proposed, as part of the defence case, to lead evidence of a fact which, if true, would be within the knowledge of a Crown witness, it is usually expected, at least in this State, that defence counsel will put that part of the defence case to the Crown witness in cross-examination’ ([21]). Here, the Crown did not do this and sought to rely on such evidence in summing up. The trial judge did not correct this mistake in her directions to the jury and further she incorrectly directed the jury that they should be careful about the appellant’s sister’s evidence.
    2. The direction that the jury had ‘to clearly be careful’ about the identification evidence from the neighbour fell short of informing the jury that there was a ‘special need for caution.’ The trial judge said nothing about the reasons for that caution namely, the conviction of innocent persons as a result of mistaken identification by an apparently honest witness ([34]-[35]).