Weekly Criminal Law Review Editor - Richard Thomas of Counsel A Weekly Bulletin listing Decisions of Superior Courts of Australia covering criminal

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1 Friday, 21 July 2017 Weekly Criminal Law Review Editor - Richard Thomas of Counsel A Weekly Bulletin listing Decisions of Superior Courts of Australia covering criminal Search Engine Click here to access our search engine facility to search legal issues, case names, courts and judges. Simply type in a keyword or phrase and all relevant cases that we have reported in Benchmark since its inception in June 2007 will be available with links to each case. Executive Summary DPP (NSW) v Jones, Dillon Michael (NSWCCA) - criminal law - bond - revocation - bond imposed by District Court - whether Local Court has power to revoke bond - case stated - power to revoke could be exercised by Local Court - questions answered Boyd v R (No 3) (NSWSC) - criminal law - murder - 5 life sentences imposed in whether life sentences should be determined - consideration of legislative scheme - whether offences in worst category - heinousness and moral culpability considered - sentences confirmed Bauer (a Pseudonym) v The Queen (No 2) (VSCA) - criminal law - historical sexual assaults - tendency evidence - admissibility - whether possessing significant probative value - evidence only from complainant - authorities considered - complainant evidence - whether fresh in memory - retrial ordered Gul v The Queen (VSCA) - criminal law - sexual assault - directed verdict on some counts - whether jury required directions on use of evidence - consideration of Jury Directions Act 2015 (Vic) - whether parties are required to request directions - appeal dismissed R v Hyde (QCA) - criminal law - sexual assaults - whether distressed state of complainant corroborated her testimony - whether directions required - whether judge s directions undermined defence case - appeal allowed - retrial ordered R v Phillips (QCA) - criminal law - juror bias - directions - whether jury should have been discharged - whether sentence manifestly excessive - appeal dismissed Page 1

2 R v Leka (SASCFC) - criminal law - deportation - whether risk relevant on sentence - conflicting lines of authorities considered - to be relevant, evidence required - appeal dismissed Jasmin v The Queen (WASCA) - criminal law - people smuggling - whether applicant was 18 years at time of offences - whether District Court had jurisdiction - exercise of Royal Prerogative of Mercy - operation of State and Commonwealth legislation considered - miscarriage of justice - appeal allowed - acquittal entered TGW v Tasmania (TASCCA) - criminal law - indecent assault - fellatio - whether penetration an aggravating feature - whether sentence manifestly excessive - appeal allowed - appellant resentenced Wheaton v Wilson (TASSC) - criminal law - radar - proof of speed - motion to review magistrate s findings - principles to be applied considered - whether evidence sufficient to support findings of guilt - proof of operation of speed analyser considered - motion allowed in part Summaries With Link (Five Minute Read) DPP (NSW) v Jones, Dillon Michael [2017] NSWCCA 164 Court of Criminal Appeal of New South Wales Basten JA, Harrison & R A Hulme JJ Criminal law - bond - jurisdiction to revoke - a s9(1) bond (Crimes (Sentencing Procedure) Act 1999 (NSW) (SPA)) was imposed by the District Court in 2015, by way of determination of a severity appeal from the Local Court - the conditions on the bond required the offender to be of good behaviour and to appear before the court if required and, secondly, required any breach to be reported to the judge who imposed the bond (Judge Armitage) - this second condition was of no legal effect, but did not affect the determination of the matter - there was a breach of the bond and the matter came before the Local Court, which imposed sentences for the breach - on a severity appeal to the District Court, that Court stated a case for determination by the Supreme Court pursuant to s 5B Criminal Appeal Act 1912 (NSW), the primary issue being whether the Local Court had jurisdiction to revoke the bond - held: there is no doubt that the court which imposed the bond has power to deal with a suspected failure to comply with its conditions - the question, however, is whether it alone has such power - the question turns on the jurisdiction to exercise the powers conferred by ss98 & 99 SPA - in imposing the bond, Judge Armitage was exercising the appellate jurisdiction of the District Court under Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) - s98(1) SPA was satisfied and the Local Court had power to deal with a failure to comply with the conditions of the bond - the same result is achieved by s71(3) CAR Act - the bond imposed by the District Court had the same effect and could be enforced in the same manner as if it had been imposed by the Local Page 2

3 Court - proceedings which can be taken for breach of a good behaviour bond provide a manner of enforcement of the bond and, accordingly, the powers conferred by s98 can be exercised by the Local Court with respect to a bond imposed by the District Court on appeal from the Local Court - where the failure to comply with a condition of the bond involves the commission of further offences, it will be open to the Local Court, when sentencing for the further offences, to deal with the failure to comply with the bond - stated case (questions) answered accordingly [Editor s note: Harrison & R A Hulme JJ agreeing with Basten JA]. Jones, Dillon Michael Boyd v R (No 3) [2017] NSWSC 863 Supreme Court of New South Wales Johnson J Criminal law - murder - over 7 months in , the applicant murdered 4 persons and attempted to murder a fifth in 3 separate incidents - during the incidents, the applicant committed acts which were capable of being charged as sexual offences, but he was not charged with such offences - each of the offences involved acts of brutality and sadism - one victim feigned death and survived, being later able to give evidence as to the events - on 4 January 1985, the applicant was found guilty of 4 murders and with wounding with attempt to murder and sentenced to 5 terms of penal servitude for life - in 1987 the Court of Criminal Appeal dismissed a conviction appeal by the applicant - by Application pursuant to cl 2 Sch 1 Crimes (Sentencing Procedure ) Act 1999 (NSW), the applicant, who is now 61, applied for determination of his life sentences - this was the third Application - held: statutory scheme (s44(4); Sch 1 Crimes (Sentencing Procedure) Act 1999) for determination of existing life sentences considered - cl 7(1)(d) & (5) Sch 1 to be applied to determination of the Application - cl 7(5) required the Court to have regard to and give substantial weight to the applicant s level of culpability and the heinousness of the offences - considering the circumstances of each offence and tendered psychiatric reports, the Court found that the offences were of the utmost gravity - the applicant remains, at best, a moderate-to-high risk of reoffending if released - this risk has not been diluted by the passage of time - the evidence does not provide any confidence, based on objective grounds, that any significant rehabilitation is likely to occur - Pollock v R [2007] NSWSC 148 referred to - the Court must give substantial weight to the applicant s level of culpability - accepting that the applicant suffered some trials and tribulations as part of the process of growing up, the Court rejected the submission that the principles in Bugmy v The Queen (2013) 249 CLR 571 provided real assistance to him - he was not significantly affected by alcohol or drugs at the time of the commission of the offences and there was no evidence that he suffered from any mental illness or disorder - indeed, the evidence was otherwise - his subjective factors were of limited relevance - there was no plea of guilty and even now there was no contrition - the applicant s level of culpability was very high - considering the heinousness of the offences (see R v Harris (2005) 50 NSWLR 409) - each of the offences was heinous - the murders and the attempted murder fell within the worst category of offences of murder - these were heinous in the extreme - the applicant displayed sexual sadism and no feature of the surrounding circumstances operated to reduce his moral Page 3

4 culpability - he continues to demonstrate an absence of insight into his gross offending - the offences are in the worst category - the Court declined to set a specified term or a non-parole period in respect of the 5 life sentences - Application refused [Editor s note: see R v Boyd (1985) 81 A Crim R 260; Boyd v R [2016] NSWSC 1691; Boyd v R (No 2) [2016] NSWSC 1755]. Boyd (No 3) Bauer (a Pseudonym) v The Queen (No 2) [2017] VSCA 176 Court of Appeal of Victoria Priest, Kyrou & Kaye JJA Criminal law - historical sexual assaults - applicant was charged with 18 offences against a foster child (RC) - the offences were alleged to have occurred between 1988 and 1998, when the child was aged between 4 and 15 years and the applicant 42 to 53 years - when RC was 12, she had specifically denied to a DHS worker that she had been the victim of any sexual misconduct - RC first complained to police in 2000, but no action was taken until 2011, when the applicant was interviewed - then, in 2013, applicant was tried (the first trial) on an indictment alleging sexual offending against 5 separate complainants - he was convicted, but on appeal, the convictions were set aside and a retrial ordered - following a series of 8 retrials, guilty verdicts were only returned in respect of the charges relating to RC (the second trial), those charges being 7 counts of indecent assault, 5 counts of sexual penetration of a child under 16, 4 counts of indecent act with a child under 16, 1 count of sexual penetration of a child under 10, 1 count of attempted sexual penetration of a child under 10 - the trial judge permitted the prosecution to adduce evidence from the complainant as to charged and uncharged acts as tendency evidence, admissible in respect of all charges on the indictment - the applicant sought leave to appeal the convictions on several grounds, including that the trial miscarried because of joinder of counts and reliance upon tendency evidence - held: (1) the use of recorded evidence from the first trial in 2013: on the second trial, the prosecution tendered a recording of the complainant s evidence in the first trial - this recorded evidence was admissible (s379 Criminal Procedure Act 2009 (Vic) (CPA)), subject to s381 - in deciding whether to admit this evidence, the trial judge was required to exercise a discretion by reference to what the interests of justice required - once the recorded evidence was admitted, the complainant could not be further cross-examined - the prosecution bore the onus of persuading the judge that the proper exercise of the discretion favoured the admission of the evidence - one relevant factor was the willingness of RC to give evidence (see s381(1)(c) CPA) - without reaching a final determination, the Court was of the view that the prosecutor s assertion from the Bar Table that RC had a preference not to give evidence could not satisfy the precondition to admissibility found in s381(1)(c); (2) tendency evidence: the prosecution tendency notice identified the tendency relied on as the applicant having a sexual interest in the complainant and having a willingness to act on that sexual interest - Hughes v The Queen [2017] HCA 20 considered - the tendency evidence in Hughes flowed from 5 complainants and several other witnesses and had significant probative value because it made probable that which would otherwise be regarded as improbable - here, however, the evidence flowed principally from a single source, RC - the Court was unattracted to the view that tendency evidence may be said to possess significant Page 4

5 probative value when its sole source is a single complainant - referring to IMM v The Queen (2016) 257 CLR the evidence lacked significant probative value in establishing that the complainant s account of the charged acts was true because it came from her; it was unsupported by an independent source; it possessed no other feature which might have given it significant probative value - it was not cross-admissible and its admission resulted in a substantial miscarriage of justice; (3) failure to sever: the count in issue (count 2) was a related offence (CPA Sch 1, cl 5(1)) - power to sever considered (see ss193 & 194 CPA) - here, the count was properly joined - however, the trial judge should have exercised the discretion under s193 CPA to sever it as the evidence relied upon in support of it was inadmissible; (4) complaint evidence & s66 Evidence Act 2008 (Vic): here, the complaint was made a few months after December 1997 or January 1998, when RC moved in with another family - that complaint was some 10 or 11 years after the alleged offending - s137 Evidence Act 2008 was relevant - the touchstone of admissibility of a previous representation is that it was fresh in the memory at the time it was made, but here there was no evidence of that - a substantial miscarriage of justice resulted from the admission of RC s complaint; (5) new trial or acquittal: Rabey v The Queen [1980] WAR 84, 95-6; R v Bartlett [1996] 2 VR 687, 698 referred to - in DPP (Nauru) v Fowler ((1984) 154 CLR 627, 630) a two-stage test was propounded - the interests of the community as well as those of the accused need to be balanced - Court concluded that a new trial should be ordered; appeal allowed, new trial ordered [Editor s note: for the first appeal see Bauer (a Pseudonym) v The Queen (2015) 46 VR 382]. Bauer (No 2) Gul v The Queen [2017] VSCA 153 Court of Appeal of Victoria Ashley & Priest JJA, Croucher AJA Criminal law - sexual assault - conviction appeal - applicant, a bouncer, and complainant were hanging out and smoking ice - they were having sexual intercourse when they started arguing - they continued smoking ice, having sex and arguing - applicant was charged with indecent assault, rape and threat to kill - the complainant gave evidence that she consented to the applicant putting his fingers in her anus, but that she objected when he wiped his fingers across her face - the trial judge then directed the jury to return verdicts of not guilty in respect of the charges 1 & 2 (rape and compelling sexual penetration),leaving the remaining charges for verdict - the applicant sought leave to appeal the convictions, arguing, inter alia, that the judge erred in failing to instruct the jury how they could use the complainant s evidence relating to charges 1 & 2 and in failing to discharge the jury - held: (1) issue of consent: the real issue at trial was whether the complainant s evidence could be accepted - the applicant s belief in consent was not a fact in issue - no direction was required concerning consent - s11(b)(i) Jury Directions Act 2015 (Vic) (JDA) placed an onus on defence counsel to inform the judge whether each element of the offence charged was or was not in issue - s12 JDA placed an onus on defence counsel to request directions on the matters in issue and the evidence in the trial relevant to the matters in issue - no such request was made - the defence case was unequivocally that the charged activity did not occur - thus there were no substantial and Page 5

6 compelling reasons for any direction to be given; (2) direction on how to use the evidence: the evidence which it was argued should have attracted a warning was other misconduct evidence within s26 JDA - s27(1) JDA provides that defence counsel may request (s12) that the trial judge direct the jury on other misconduct evidence adduced by the prosecution - no such direction was sought - by s16 JDA, the judge could have given such a direction only if he considered there were substantial and compelling reasons for doing so - the section clearly imposes a residual obligation upon the trial judge to give a direction even though not requested by the parties, but it is not an obligation in the abstract - substantial and compelling means of considerable importance and sternly persuasive in the context of the issues in the trial - there were no such reasons in this case; (3) failure to discharge the jury: the short answer was that defence counsel did not seek a discharge and there were sound forensic reasons for not doing so - leave refused, appeal dismissed [Editor s note: Ashley & Priest JJA, Croucher AJA dissenting]. Gul R v Hyde [2017] QCA 148 Court of Appeal of Queensland Sofronoff P, McMurdo JA & Douglas J Criminal law - sexual assaults - appellant was charged with 13 counts of sexual offending against 2 complainants, who were sisters - the charges related to events during the period 2000 to appellant was found guilty on 11 of the counts and sentenced to concurrent terms, the longest term being 11 years - on appeal, appellant argued that the verdicts were unreasonable and that a miscarriage of justice was occasioned by the jury being allowed to consider the distressed condition on one complainant when giving evidence as being supportive of her testimony - in his address, the prosecutor relied upon this distressed condition as evidence corroborating her testimony - held: (1) unreasonable verdicts: the task of the Court was to consider the whole of the record and decide whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences - in doing that, the Court was required to keep in mind the jury s advantage of seeing and hearing the evidence - the various matters identified by the appellant were not matters that required the jury to acquit the appellant - the verdicts were not unreasonable; (2) the complainant s distressed condition: no direction was sought by defence counsel on the prosecutor s submission - R v Sailor [1994] 2 Qd R 342; R v Rutherford [2004] QCA 481; R v Williams [2010] 1 Qd R 276 referred to - here, the distressed state of the complaint was not the subject of evidence - rather, the prosecutor relied upon her apparent condition when she was giving her evidence - there was no evidence which called for a decision by the judge as to whether it was relevant, or a direction as to how, as a piece of evidence, it might be relevant - the jury must have understood that it was for them to assess whether the demeanour of the complainant, like her evidence, was genuine - there was no miscarriage of justice; (3) the judge s directions about the defence case: the complaint was that the judge directed the jury that the defence case did not rely upon concoction - this was incorrect and had the potential to undermine the defence case - the respondent was not relying upon the proviso - verdicts set aside; appeal allowed, new trial ordered [Editor s note: Page 6

7 Douglas J agreeing with Mc Murdo JA, Sofronoff P dissenting]. Hyde R v Phillips [2017] QCA 147 Court of Appeal of Queensland Fraser, Philippides & McMurdo JJA Criminal law - jury - appellant asked complainant to give him a lift in her vehicle - complainant did not know the area and lost her way - appellant directed complainant to his ex-wife s house - arguments followed and they left - appellant asked complainant to stop and then assaulted her - appellant found guilty of 6 offences, being torture, rape and attempted rape - appellant acquitted of one count of rape - during the trial, the jury sent notes to the judge and after directions were provided by the judge the jury returned to the jury room - on 2 occasions a different juror remained in the court room after the jury had left - the defence application for the jury to be discharged was refused - the appellant appealed the convictions & sentence, arguing, inter alia, that the verdicts were unreasonable and the judge erred in not discharging the jury - held: (1) unreasonable verdicts: this ground argued that the guilty verdicts were unreasonable as irreconcilably inconsistent with the acquittal - principles to be applied identified in MacKenzie v The Queen (1996) 190 CLR 348, after examining the evidence, the Court found that the verdicts were sensibly reconcilable upon the basis that the jury conscientiously obeyed the trial judge s directions, particularly the direction to consider each rape allegation separately - while accepting the complainant as a credible and reliable historian, the jury might have been unpersuaded that the Crown had excluded a reasonable doubt that penetration was effected - the verdicts were not inconsistent or unreasonable; (2) jury discharge: the Court accepted the submission that there was no error in the judge s refusal to discharge the jury - the question was whether, despite the directions to the jury, the event gave rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that one of the jurors, or the jury, had not discharged their task impartially (R v Czajkowski (2002) 137 A Crim R 111) - there was no sufficient reason to depart from the usual assumption that the jury obeyed the judge s directions - there was no ground for discharge of the jury and no error identified; (3) sentence and manifestly excessive ground: the appellant had an extensive criminal record with convictions for violence - he was a powerful man, much bigger and stronger than the complainant - referring to R v Willey [2008] QCA 318; R v Cosh [2007] QCA the sentence imposed was not manifestly excessive; appeal dismissed [Editor s note: Philippides & McMurdo JA agreeing with Fraser JA]. Phillips R v Leka [2017] SASCFC 77 Full Court of the Supreme Court of South Australia Peek, Stanley & Hinton JJ Criminal law - deportation - appellant fled from Albania after his family discovered that he was homosexual - appellant eventually came to Australia and sought protection as a refugee - while on a birding visa, he became involved in a large scale cannabis operation - appellant pleaded Page 7

8 guilty to one count of cultivating a large commercial quantity of controlled plants for sale, one count of cultivating, and one count of trafficking in cannabis - appellant sentenced to 5 years 7 months, NPP 2 years 9 months - on appeal, appellant argued the sentencing judge erred by failing to take into account the additional hardship that he would suffer because he would be deported at the end of his sentence (see R v Zhang [2017] SASCFC 5) - held: the Court identified a line of authority from Queensland and Victoria (R v UE [2016] QCA 58; Guden v R [2010] VSCA 196) and a second conflicting line from NSW and Western Australia (Dauphin v The Queen [2002] WASCA 104; R v Latumetan & Murwanto [2003] NSWCCA 70) dealing with the relevance of deportation in sentencing - Zhang may have been decided per incuriam - it was not necessary to resolve this conflict, however, to decide this appeal - the Court was satisfied that the prospect of deportation is a relevant consideration mitigating the exercise of the sentencing discretion - satisfied that the judge did have regard to this mitigating factor - the Queensland and Victorian authorities establish that where the prospect of deportation is a relevant sentencing consideration, the judge cannot speculate and there must be evidence that establishes both a sensible quantification of the risk that deportation will in fact occur and proof that deportation would in fact be a hardship during any particular term of imprisonment (TAN v The Queen (2011) 216 A Crim R 535, 568-9) - here, there was no evidence of these matters and in any event, as he had entered Australia unlawfully, any hardship was pre-existing - appeal dismissed [Editor s note: Peek & Hinton JJ agreeing with Stanley J]. Leka Jasmin v The Queen [2017] WASCA 122 Court of Appeal of Western Australia Buss P, Mazza & Mitchell JJA Criminal law - people smuggling - appellant, an Indonesian citizen, was convicted of bringing 5 or more people into Australia (people smuggling) contrary to s232a Migration Act 1958 (Cth) - s233c prescribed mandatory penalties for an offence under s232a unless it was established on the balance of probabilities that the offender was aged under 18 years at the time of the offence - the trial judge concluded that the appellant was 18 years and that therefore the District Court had jurisdiction to deal with the charge (see R v Jasmin [2010] WADC 189, [98]) - the appellant was convicted and sentenced to 5 years, NPP 3 years - s19 Children s Court of Western Australia Act 1988 (WA) confers exclusive jurisdiction upon the Children s Court to hear and determine a charge against a person who was under 18 years at the time of the offence - in November 2015, a petition for the exercise of the Royal Prerogative of Mercy was referred by the Commonwealth Attorney General to this Court (WASC) for the whole case to be determined as if it were a conviction appeal (s140(1)(a) Sentencing Act 1995 (WA)) - held: the Crown Prerogative of Mercy at common law has become an integral element in the criminal justice system (see Burt v Governor-General [1992] 3 NZLR 672, 681) - the regime in s140(1)(a) Sentencing Act 1995 (WA) is both a substitute for, and alternative to, the exercise of the Royal Prerogative of Mercy (see Mallard v The Queen (2005) 224 CLR 125, [6]; Mickelberg v The Queen (1989) 167 CLR 259, 312) - by virtue of the requirement in s140(1)(a) that this Court hear and determine a petition referred by the AG as if it were an appeal by the offender against Page 8

9 conviction, this Court is confined to making orders and applying procedures in accordance with the Criminal Appeals Act 2004 (WA) and any inherent power the Court may have in relation to a conviction appeal - s68(2) Judiciary Act 1903 (Cth) operates to confer on the Cth AG the power to refer a petition to this Court pursuant to s140 Sentencing Act 1995 (WA) and to confer on this Court like jurisdiction to deal with persons charged and convicted of federal offences as it has with respect to persons charged and convicted of State offences - the AG is entitled to refer to this Court, pursuant to s140 of the Sentencing Act 1995 (WA), a petition in relation to an offender who has been convicted on indictment even though the offender has not exercised the relevant right of appeal conferred by s23(1) Criminal Appeals Act 2004 (WA) - considering the evidence, the Court was satisfied that the primary judge s conclusion that the appellant was 18 years was unsafe - error constituted jurisdictional error - the Court was not able to determine the actual age of the appellant and therefore could not affirmatively find that the District had jurisdiction to deal with the charge - in the interests of justice, the Court was required to enter a judgment of acquittal rather than order a new trial - appeal allowed, conviction set aside, judgment of acquittal entered [Editor s note: Mazza & Mitchell JJA agreeing with Buss P. On 10 May 2012, the Cth AG directed (s19ap(1) Crimes Act 1914 (Cth)) that the appellant be released on licence on 18 May 2012 and on that day he was repatriated to Indonesia]. Jasmin TGW v Tasmania [2017] TASCCA 10 Tasmanian Court of Criminal Appeal Tennent J, Marshall & Porter AJJ Criminal law - sexual intercourse - appellant, about 62, was an invalid pensioner and suffered from intellectual deficits - he was unable to read or write and had been severely abused as a child - complainant was 63 and suffered from an intellectual disability - he lived separately in the same accommodation - appellant placed complainant s penis in his, the appellant s, mouth - appellant was found guilty of indecent assault and was sentenced to 2 years 6 months & placed on the register under the Community Protection (Offender Reporting) Act 2005 (Tas) - appellant was originally charged with rape, but the jury were directed to acquit of that charge and convicted of the alternative charge of indecent assault - the Director appealed the directed verdict and, without affecting the verdict of acquittal, that appeal had been upheld on the basis that the crime of rape includes the penetration of the mouth of an accused by the penis of the complainant (see DPP v TGW [2017] TASCCA 1; s1 Criminal Code Act 1924 (Tas)) - the appellant then appealed the severity of his sentence, the question being whether the fact of penetration of the mouth was an aggravating factor - held: on sentence, a judge is entitled to consider all of the offender s conduct, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence (R v De Simoni (1981) 147 CLR 383, 389; Lovegrove v The Queen [1961] Tas SR 106, 107) - referring to R v Causby [1984] Tas SR 54, 66, there is no doubt that generally rape is regarded as a more serious crime than indecent assault - considering what weight was to be given to the fact of penetration, the Court stated that it was appropriate for the court to have regard to the surrounding circumstances of the offence Page 9

10 notwithstanding that they might have been the subject of a direct charge, provided they formed part of, or were directly related to, one of the ingredients of the charge being sentenced on - here, the fact that the appellant was, as particularised, sucking the complainant s penis, was directly relevant to the nature of the force applied - it related to what constituted an assault as an ingredient of the crime of indecent assault and it was relevant to the issue of indecency - on the principles to be applied to the ground that the sentence was manifestly excessive, the Court referred to DPP v Pearce [2015] TASCCA 1; Hall v Tasmania [2015] TASCCA 6; Braslin & Cowen v Tasmania [2010] TASCCA 1 - here, this was a serious case of indecent assault, involving abuse of friendship - no force or threats was used - the issue of consent was unusual - the offence was opportunistic and the appellant s own intellectual deficits were relevant - the sentence was manifestly excessive - appeal allowed, appellant resentenced to 18 months, NPP 10 months [Editor s note: Tennent J & Marshall AJ agreeing with Porter AJ]. TGW Wheaton v Wilson [2017] TASSC 40 Supreme Court of Tasmania Pearce J Criminal law - radar - motion to review magistrate s findings - magistrate convicted applicant of 2 charges of exceeding the speed limit (r20, Road Rules 2009) - the police evidence was that the appellant s speed had been measured by a radar speed measuring device - held: (1) motion to review, principles: the relevant principles to be applied on a motion to review alleging error are well established - s107(4)(a) Justices Act 1959 (Tas) requires error on the part of the magistrate on a matter of fact alone, or of law alone, or of both fact and law - on a review of a magistrate s decision on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion he or she did (Wood v Smith [1991] TASSC 12; Phillips v Arnold (2009) 19 Tas R 21) - it is not for this Court to determine what evidence should have been accepted and what weight it should have been accorded - if there is evidence which if accepted justifies the decision, this Court will not intervene (Nilsson v McDonald (2009) 19 Tas R 173) - after reviewing all of the evidence the Court was satisfied that the magistrate was entitled to accept the evidence of the police witnesses and once he accepted the truth of that evidence, no further evidence was necessary; (2) on the general issue of the probative value of the speed detection device: resolution of this issue turned on whether it was reasonably open to the magistrate to determine the speed of the applicant s vehicle by the operation of the radar speed analyser - proof of a speed limit offence by use of a radar device is evidence of a fact in issue given by a scientific or measuring instrument - Tasmanian decisions have decided that evidence of the result of the operation of a speed analysing device is to be considered in accordance with the 3 principles advanced in Professor Wigmore s work The Science of Judicial Proof (3rd ed, pg 220) (see Leonard v Newell [1983] Tas R 78) - the 3 principles are set out at [17] - a radar speed analyser has not been accepted as an instrument whose accuracy can be accepted without expert evidence - here, the devices had been certified and by operation of the regulations and the certificate the magistrate was able to reasonably conclude that the radar speed analyser was capable of Page 10

11 accurately determining the speed of a vehicle within a margin of 2km/h (see Arnold v Beech- Jones [2004] TASSC 27) - however, in accordance with Wigmore s third principle, the prosecution was required to prove that the operator of the device was qualified by training and experience to operate it and that it was operated in accordance with that training and experience - before the magistrate, that issue was not addressed - examining the evidence, proof that the device was operated properly was available in respect of one charge only - error was therefore shown with respect to only that charge - conviction set aside and dismissed - otherwise motion dismissed. Wheaton Page 11

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