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Brown v Tasmania

Brown v Tasmania

Case [2019] TASCCA 4 17 April 2019

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Criminal Law

Evidence

Statutory Interpretation

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[2019] TASCCA 4

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Brown v Tasmania [2019] TASCCA 4

PARTIES:  BROWN, Christo
  v
  STATE OF TASMANIA

FILE NO:  CCA 2629/2018
DELIVERED ON:  17 April 2019
DELIVERED AT:  Hobart
HEARING DATE:  15 November 2018
JUDGMENT OF:  Brett J, Geason J, Marshall AJ

CATCHWORDS:

Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – Tendency and coincidence evidence under uniform evidence law – Generally – Conduct that post-dated the crimes – Tendency of appellant to impose himself in a sexual manner upon females whilst they were in a vulnerable position, namely while asleep in bed – Whether the conduct had significant probative value in respect of a charge of rape – Evidence relevant to circumstantial proof of identity – Evidence had significant probative value and any prejudice arising was low – Trial judge did not err in admitting evidence.

Evidence Act2001 (Tas), ss 97, 101(2).
McPhillamy v The Queen [2018] HCA 52, 361 ALR 13; Hughes v The Queen [2017] HCA 20, 344 ALR 187, followed.
R v Bauer [2018] HCA 40, 92 ALJR 846, referred to.
Aust Dig Criminal Law [2780]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Appellant found guilty of one count of rape, one count of aggravated burglary, one count of demanding money with menaces with intent to steal – Youth of appellant only mitigating factor – Elderly complainant had to give evidence – Eight years' imprisonment not manifestly excessive.

Baldock v Tasmania [2015] TASCCA 3, referred to.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  A Hensley
             Respondent:  D Coates SC
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASCCA 4
Number of paragraphs: 71

Serial No 4/2019
File No CCA 2629/2018

CHRISTO BROWN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BRETT J
GEASON J (Dissenting)
MARSHALL AJ
17 April 2019

Order of the Court

Appeal dismissed.

Serial No 4/2019
File No CCA 2629/2018

CHRISTO BROWN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BRETT J

17 April 2019

I have had the advantage of reading in draft the reasons for judgment of Marshall AJ. I agree with the conclusions reached by his Honour with respect to both grounds of appeal. I would also dismiss the appeal.
In respect of tendency evidence, the plurality in Hughes [2017] HCA 20, 344 ALR 187, said at [40]:
"The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown v Tasmania

Details

AGLC: Brown v Tasmania [2019] TASCCA 4
Case: [2019] TASCCA 4
Decision Date: 17 April 2019

CaseChat Overview and Summary

In *Brown v Tasmania*, the appellant was charged with rape. The central dispute concerned the admissibility of evidence of the appellant's prior conduct, which occurred after the alleged commission of the offences. The case was heard by Brett J, Geason J, and Marshall AJ.

The primary legal issue before the court was whether the evidence of the appellant's subsequent conduct, which demonstrated a tendency to impose himself sexually upon sleeping females, possessed significant probative value in relation to the charges of rape. The court was required to determine if this evidence was relevant and admissible under the uniform evidence law, particularly considering its potential to establish the appellant's identity through circumstantial proof, and whether any prejudicial effect outweighed its probative value.

The court reasoned that the evidence of the appellant's subsequent conduct was highly relevant to establishing his identity as the perpetrator of the rapes. The pattern of behaviour, involving sexual imposition upon vulnerable, sleeping females, was sufficiently similar and distinctive to have significant probative value. The court found that the trial judge had not erred in admitting this evidence, as its probative value in proving the charges was substantial and the risk of unfair prejudice was minimal.

The court therefore dismissed the appeal, upholding the trial judge's decision to admit the evidence.

Orders