Court system on trial

Appeals judges could be ‘prone to group think’, Ellis says

FORMER director of public prosecutions Tim Ellis, SC, has criticised the structure of the state’s Court of Criminal Appeal.

Mr Ellis, now a barrister, appeared before the court yesterday representing Andrew Neville Hodgetts, 40, of Launceston, who is appealing against his sentence for defrauding his employer, Launceston Motor Group, of $700,000.

Mr Ellis told the Court of Criminal Appeal, made up of Chief Justice Alan Blow, Justice Helen Wood and acting Justice Shane Marshall, its structure could lead to judges protecting each other’s judgments. He said he was not suggesting the court had acted inappropriately.

“All I am doing by this is asking the court to examine itself,” he said.

“The structure of the Court of Criminal Appeal in Tasmania is not one where there is a separation between the sentencing judge and the appeal judges.”

Mr Ellis said the set-up could lead to judges being “prone to group think” and “protecting each others’ judgments”.

“There should be a … real guarding against the unconscious temptations of not upsetting each other’s judgments,” he said.

Mr Ellis said a search of Australian Legal Information Institute figures revealed a greater proportion of appeals were allowed in NSW and Victoria than in Tasmania.

“They are appeal courts where, by and large, are not constituting also of trial judges,” he said.

Mr Ellis also said he was aware the court’s structure was not decided by the court itself.

Crown prosecutor Jackie Hartnett said the statistics Mr Ellis produced needed a “proper analysis”.

The Crown was granted 14 days to reply in writing to Mr Ellis’s claims.

Law Society of Tasmania president Will Justo said the appeal court structure had not been raised as an issue with the society. Criminal barrister Greg Barns said Mr Ellis’s point was “an interesting one”.

Mr Barns said NSW, Victor- ia, Queensland and WA had separate appeal courts but, being larger states, those courts sat much more regularly than Tasmania’s.

“The issue would be resourcing that appeal stream with judges and staff,” he said.

Hodgetts pleaded guilty to nine counts of computer-related fraud and was sentenced to five years’ jail with a nonparole period of three years.

He made 56 payments from his employer’s bank account to his own between 2011 and 2014.

He is appealing against his sentence on the grounds his non-parole period was manifestly excessive, and no reason for it was given by the judge.

Mr Ellis said in most cases, a non-parole period of half the head sentence was imposed.

Ms Hartnett said a non-parole period of three years was not unreasonable or unjust given the nature of the crimes.

She said the crimes were motivated by greed and Hodgetts was living beyond his means, spending the money on holidays and dining out.

The court has reserved its decision on Hodgetts’s appeal.