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Davey v Tasmania

Davey v Tasmania

Case [2024] TASCCA 11 20 September 2024

Intention

Statutory Construction

Criminal Law

Evidence

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[2024] TASCCA 11

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

CITATION: Davey v Tasmania [2024] TASCCA 11

PARTIES:	DAVEY, Matthew John
v
STATE OF TASMANIA
FILE NO:	CCA 3120/2021
DELIVERED ON:	20 September 2024
DELIVERED AT:	Hobart
HEARING DATES:	18 April, 30 May 2024
JUDGMENT OF:	Blow CJ, Jago J, Martin AJ

CATCHWORDS:

Criminal Law – Evidence – Propensity, tendency and co-incidence – Admissibility and relevancy – Tendency and co-incidence evidence under uniform evidence law – Other cases – Attempted murder of partner – Evidence of tendencies during relationship.

Aust Dig Criminal Law [2782]

Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to evidence – Appeal dismissed – Attempted murder – Complainant covered in petrol and set on fire – Self-harm defence – Asserted weaknesses in complainant's evidence – Verdict unimpeachable. Aust Dig Criminal Law [3476]

Criminal Law – Appeal and new trial – Particular grounds of appeal -Conduct of prosecutor or prosecution –

Unfair cross-examination of accused – Minor issues – Appropriate directions by judge – No miscarriage of justice.

Aust Dig Criminal Law [3514]

Criminal Law – Appeal and new trial – Particular grounds of appeal – Conduct of defence counsel – Whether incompetent – Reasons for tactical decisions.

Aust Dig Criminal Law [3515]

Jury – Verdicts and findings – Majority verdict – Charge of attempting to commit murder – Not a "trial relating to treason or murder".

Aust Dig Jury [1021]

Legislation:
Juries Act 2003 (Tas), s 43

Cases cited:

Ali v The Queen [2005] HCA 8; 79 ALJR 662

AWK v State of Tasmania [2024] TASCCA 5

Black v R (1993) 179 CLR 44
Browne v Dunn (1893) 6 R 67
Crampton v The Queen [2000] HCA 60; 206 CLR 161

Braslin v Tasmania [2022] TASCCA 8

Diehm v DPP (Nauru) [2013] HCA 42, 303 ALR 42
Festa v The Queen [2001] HCA 72, 208 CLR 593

Hofer v The Queen [2021] HCA 36, 274 CLR 351 Hughes v The Queen [2017] HCA 20, 263 CLR 338 IMM v The Queen [2016] HCA 14, 257 CLR 300

Kanaan v The Queen [2006] NSWCCA 109

Liberato v The Queen (1985) 159 CLR 507

McPhillamy v The Queen [2018] HCA 52, 92 ALJR 1045 Mannah v Western Australia [2016] WASCA 19 Mickelberg v The Queen (1989) 167 CLR 259.

Randall v The Queen [2004] TASSC 42, 146 A Crim R 197 R v Apostilides (1984) 154 CLR 563 R v Birks (1990) 19 NSWLR 677

R v Bauer (a pseudonym) [2018] HCA 40, 266 CLR 56
R v Manunta (1989) 54 SASR 17
R v Szach (1980) 23 SASR 563
R v XY [2013] NSWCCA 121, 84 NSWLR 363
Tasmania v S [2004] TASSC 84
TL v The King [2022] HCA 35, 275 CLR 83

Tooheys Limited v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602
Whitehorn v The Queen (1983) 152…

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 Davey v Tasmania

Details

AGLC: Davey v Tasmania [2024] TASCCA 11
Case: [2024] TASCCA 11
Decision Date: 20 September 2024

CaseChat Overview and Summary

In *Davey v Tasmania*, the Supreme Court of Tasmania considered the admissibility of evidence concerning the appellant's alleged prior violent conduct towards his partner, in the context of charges of attempted murder of that same partner. The central dispute revolved around whether this prior conduct constituted admissible tendency or coincidence evidence under the *Evidence Act 2001* (Tas).

The primary legal issue before the Court was whether the evidence of the appellant's alleged prior acts of violence against his partner was admissible to prove that the appellant had a tendency to act in a violent manner towards her, and that this tendency was relevant to proving the commission of the offence of attempted murder. The Court had to determine if the probative value of this evidence outweighed any potential prejudice to the appellant.

The Court reasoned that for tendency evidence to be admissible under section 97 of the *Evidence Act 2001*, the court must be satisfied that the evidence has a tendency to make the existence of any fact that is of consequence to the determination of the case more or less probable than it would be without the evidence. Furthermore, the court must be satisfied that the probative value of the evidence is not outweighed by the danger of unfair prejudice to the defendant. In this instance, the Court found that the prior acts of violence, being similar in nature and directed at the same victim, possessed a sufficient degree of relevance and probative value to be admitted, subject to the balancing exercise required by section 97(1)(b). The Court ultimately held that the evidence was admissible.

Orders