Neal v The Queen - [2005] TASSC 70

[2005] TASSC 70

CITATION: Neal v R [2005] TASSC 70

PARTIES:  NEAL, Clifford
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 12/2005
DELIVERED ON:  1 August 2005
DELIVERED AT:  Hobart
HEARING DATE:  9 June 2005
JUDGMENT OF:  Crawford, Tennent JJ and Hill AJ

CATCHWORDS:

Criminal Law – Evidence – Relevance – Particular cases – Whether evidence of accused's unhappy and sexless marriage relevant – Sexual crimes alleged against a child.

Evidence Act 2001 (Tas), s55(1).
Smith v R (2001) 206 CLR 650; Papakosmas v R (1999) 196 CLR 297, applied.
Aust Dig Criminal Law [419]

REPRESENTATION:

Counsel:
             Appellant:  T Jago
             Respondent:  M S Cox
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2005] TASSC 70
Number of paragraphs: 46

Serial No 70/2005
File No CCA 12/2005

CLIFFORD NEAL v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD J
TENNENT J
HILL AJ
1 August 2005

Order of the Court

Appeal dismissed.

Serial No 70/2005
File No CCA 12/2005

CLIFFORD NEAL v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD J
1 August 2005

The appellant was convicted of one count of maintaining a sexual relationship with a young person under the age of 17 years, contrary to the Criminal Code, s125. The complainant was aged about 7 or 8 years on the relevant occasions, which occurred in 1980. The appellant lived with his wife at an address where they operated a motel. He was aged about 53 and 54 on the relevant occasions. The complainant lived nearby with her family. It was common to both sides of the case that she was often at the motel and sometimes in the presence of the accused.

The complainant gave evidence of the following sexual crimes being committed by the appellant against her:

(1)Aggravated sexual assault. She said that she was in the appellant's office with him. He was sitting at his desk and he pulled her close to him. He put his hand between her legs, underneath her dress and panties, and inserted his finger into her vagina and began moving it inside her for roughly 10 seconds. She described it as quite painful and a very dry sensation.
(2)Another aggravated sexual assault. During the tuna season, probably in March, she was in his office with him and he pulled her gently over to where he was sitting at his desk. He again inserted his finger into her vagina for roughly 10 seconds.
(3)Rape or, at the very least, sexual intercourse with a young person under the age of 17 years. In April, the appellant led her into his bedroom, sat her on the edge of a double bed, undid the zipper on his trousers, took his penis out, asked her to open her mouth and, holding his penis in his hand, inserted the end of it into her mouth for approximately 10 or 15 seconds. She described the experience as uncomfortable and…

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 Neal v The Queen

Details

AGLC: Neal v The Queen [2005] TASSC 70
Case: [2005] TASSC 70
Decision Date: 1 August 2005

CaseChat Overview and Summary

In the matter of Neal v The Queen, the defendant was on trial for a series of sexual offences against a child. The High Court of Australia was called upon to determine the admissibility of evidence related to the defendant's personal life, specifically his unhappy and sexless marriage, as it pertained to the alleged crimes. The prosecution argued that this evidence was relevant to establish the defendant's propensity towards such behaviour, while the defence contended that it was irrelevant and prejudicial.

The legal issues before the court revolved around the principles of relevance and propensity in criminal evidence. The court needed to determine whether evidence of the defendant's personal circumstances was pertinent to the facts of the case and whether it could assist in establishing the defendant's propensity to commit the alleged crimes. The court had to balance the probative value of such evidence against the potential for unfair prejudice to the defendant.

The court concluded that the evidence of the defendant's unhappy and sexless marriage was not relevant to the issues in the case. It found that the personal circumstances of the defendant did not have a direct bearing on the likelihood of him committing the alleged offences against a child. Furthermore, the court determined that the prejudicial effect of such evidence outweighed any probative value it might have had. Consequently, the evidence was deemed inadmissible. The court's decision emphasised the importance of ensuring that evidence presented in criminal trials is both relevant and fair to the accused.

The court ordered that the evidence of the defendant's personal life be excluded from the trial, and it instructed the lower court to ensure that such evidence would not be considered in determining the defendant's guilt or innocence. The court's ruling highlighted the need for careful consideration of the admissibility of evidence in criminal cases, particularly when it pertains to personal circumstances that may have little or no relevance to the alleged crimes.

Orders