KMJ v Tasmania

[2011] TASCCA 7

[2011] TASCCA 7

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

CITATION:                 K M J v Tasmania [2011] TASCCA 7

PARTIES:  J, KM
  v
  STATE OF TASMANIA

FILE NO/S:  957/2010
DELIVERED ON:  22 June 2011
DELIVERED AT:  Hobart
HEARING DATE:  30 May 2011
JUDGMENT OF:  Evans, Blow and Tennent JJ

CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Nature of discretion – Generally – Probative value – Relevance of reliability and credibility to probative value.

Evidence Act 2001 (Tas), ss135 and 137.
R v Shamouil (2006) 66 NSWLR 228; PG v R [2010] VSCA 289, followed.
AE v R [2008] NSWCCA 52; PNJ v DPP [2010] VSCA 88, referred to.
Director of Public Prosecutions v Lynch (2006) 16 Tas R 49, distinguished.
Aust Dig Criminal Law [2676]

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Prejudicial evidence – Generally – Unfair prejudice arising from procedural considerations.

Evidence Act 2001 (Tas), ss135 and 137.
R v Cook [2004] NSWCCA 52; R v Mundine (2008) 182 A Crim R 302; R v Suteski (2002) 56 NSWLR 182; Galvin v R (2006) 161 A Crim R 449, referred to.
Aust Dig Criminal Law [2680]

REPRESENTATION:

Counsel:
             Appellant:  M L Doyle and A J Hall
             Respondent:  D G Coates SC and J Shapiro
Solicitors:
             Appellant:  Beeton & Mansell Lawyers
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2011] TASCCA 7
Number of paragraphs:  43

Serial No 7/2011

File No 957/2010

KMJ v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  EVANS J
  BLOW J

TENNENT J

22 June 2011

Order of the Court

1. Appeal dismissed.

Serial No 7/2011
File No 957/2010

KMJ v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J
22 June 2011

1. The appellant appeals against his conviction for aggravated armed robbery.

2. The evidence that identified the appellant as one of the two perpetrators of the crime is contained in two of three  audio visual recordings of statements taken by police from three witnesses.  According to the statements the witnesses were present when the crime was committed.  When the witnesses were called to give evidence on the appellant's trial, each gave evidence to the effect that she had no recall of the events in question.

3. The appellant accepts the following:

   ·That a portion of the statement taken from each witness constituted a prior inconsistent statement by that witness.

   ·That the learned trial judge did not err in granting the prosecutor leave pursuant to Evidence Act 2001, s38(1)(c), to cross-examine each witness about her prior inconsistent statement.

   ·That the pre-conditions imposed by s43(2) on adducing evidence of a prior inconsistent statement were satisfied in relation to each witness.

   ·That the portion of the statement of each witness that was admitted into evidence as a prior inconsistent statement was evidence of the facts asserted therein.

4. The sole ground of appeal is that by reason of s137, the learned trial judge…