Bartlett v The Queen

[2017] ACTCA 60

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Bartlett v The Queen

Citation:

[2017] ACTCA 60

Hearing Date:

6 November 2017

DecisionDate:

18 December 2017

Before:

Mossop and Jagot JJ, and Robinson AJ

Decision:

The appeal is dismissed

Catchwords:

APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – appeal against conviction – admissibility of tendency evidence concerning past violent conduct of the complainant – judicial directions 

Legislation Cited:

Crimes Act 1900 (ACT) s 20

Evidence Act 2011 (ACT) ss 97, 101, 101A, 102 and 103

Cases Cited:

Bugg v Day (1949) 79 CLR 442

Nudd v The Queen [2006] HCA 9; 225 ALR 161
R v Baden-Clay [2016] HCA 35; 258 CLR 308
R v Kollas [2002] NSWCCA 15
R v Kollas [2002] NSWCCA 491

R v Lumsden [2003] NSWCCA 83

Parties:

David Bartlett (Appellant)

The Queen (Respondent)

Representation:

Counsel

Mr P Bevan (Appellant)

Mr S Drumgold (Respondent)

Solicitors

Bevan and Co Lawyers (Appellant)

ACT Director of Public Prosecutions (Respondent)  

File Number:

ACTCA 56 of 2016

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Refshauge ACJ

Date of Decision:         13 October 2016

Case Title:  R v Bartlett

Court File Number:       SCC 8 of 2016; SCC 9 of 2016

THE COURT:

1. On 10 October 2016, David Ian Bartlett, the appellant, pleaded not guilty to an indictment charging him that on 22 May 2015 at Canberra he intentionally inflicted grievous bodily harm on Mr Robbie Kollas (the complainant).

1. The jury acquitted Mr Bartlett of this offence but convicted him of the statutory alternative of recklessly inflicting grievous bodily harm upon Mr Kollas, under s 20 of the Crimes Act 1900 (ACT).

1. By a Further Amended Notice of Appeal, the appellant appealed against his conviction on the alternative count. There was no appeal against sentence.

Grounds of appeal

1. The grounds of appeal are:

(a)His Honour erred in refusing the appellant’s application to adduce tendency evidence concerning past violent conduct of the complainant, Robbi [sic] Jason Ashley Kollas.

(d)His Honour erred in refusing the appellant’s application to cross-examine the complainant, Robbi [sic] Ashley Kollas, on matters that could substantially affect the assessment of his credibility as a witness, and of his bad character.

1. During the course of the hearing of the appeal, counsel made an oral application to delete ground (d) and substitute another ground. This matter is returned to below.

Ground (a)

1. The appellant filed an application to adduce tendency evidence at his trial. The application was not dealt with prior to the trial commencing. It was determined only after Mr Kollas had given evidence and cross-examination had substantially commenced. At this point in the trial, in the absence of the jury, the trial judge heard further argument. The trial judge gave his ruling, dismissing the application. The cross-examination of the complainant was then continued before the jury.

1. On 22 May 2015, a car driven by the appellant hit the complainant, Mr Kollas, as the complainant was running across Newcastle…