Decision of the Tasmanian Court of Criminal Appeal on Circumstantial Cases - Smart v Tasmania [2013] TASCCA 15

Posted by Barbara Etter APM on 31 December 2013 | 1 Comments

A very interesting and informative decision by the Tasmanian Court of Criminal Appeal on 23 December 2013 in the case of Smart v Tasmania [2013] TASCCA 15 (See The case involved a murder conviction based on circumstantial evidence. Blow CJ, Wood and Pearce JJ delivered a judgment which saw the appeal upheld and the murder conviction quashed. However, there was an order for a new trial on the charge of causing grievous bodily harm.

In the case in question, there was no eye witness evidence as to the violence inflicted on the deceased in February 2011 nor was there any evidence of any admission by Smart (other than a "mysterious utterance"). The Court citing relevant case law on the topic held that circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded. Similarly, the primary question before the jury in relation to the charge was whether, on the evidence that they accepted, there remained a rational hypothesis consistent with Smart's innocence.

There was also an issue in the case that the prosecutor had misrepresented the evidence (concerning the mark on the right cheek of the deceased, which was the strongest piece of circumstantial evidence against the appellant [44]). Indeed, the learned judge at trial did not realise that the prosecutor had misrepresented the evidence. His Honour referred to the mark on the deceased's right cheek during his summing up wthout correcting what the prosecutor had said.  The Court of Criminal Appeal held that a miscarriage of justice would occur in such a situation if it was reasonably possible that the misstatement of the evidence might have affected the jury's verdict [63]. The court stated:

The prosecutor's misrepresentation was corrected by defence counsel. The jury was given the transcript. They had heard the evidence of Senior Constable Walker. All of those facts suggest that there was no realistic risk that the prosecutor's misrepresentation might have affected the verdict.

However, we have concluded that the jury ought to have entertained a reasonable doubt in relation to the murder charge. We therefore cannot rule out the possibility that the prosecutor's misrepresentation might have caused or contributed to the verdict on the murder charge. For the reasons that we have explained, the evidence as to the mark on the deceased's right cheek was critical. We therefore consider that the learned trial judge was obliged to correct what the prosecutor had said. His Honour erred by failing to correct the misstatement, and that may have had an impact on the verdict. We therefore consider that there was a miscarriage of justice.

This decision is particularly valuable in the context of other similar cases involving circumstantial evidence and possible misrepresentations of evidence.


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