P v R - [2002] TASSC 61

[2002] TASSC 61

CITATION: P v R [2002] TASSC 61

PARTIES:  P
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 48/2002
DELIVERED ON:  6 September 2002
DELIVERED AT:  Hobart
HEARING DATE:  28 August 2002
JUDGMENT OF:  Cox CJ, Evans and Blow JJ

CATCHWORDS:

Criminal Law - Evidence - Similar facts - Admissibility - Generally - Need to exclude reasonable possibility of concoction.

Hoch v R (1988) 165 CLR 292, followed.
Aust Dig Criminal Law [514]

REPRESENTATION:

Counsel:
           Appellant:  M F Daly
           Respondent:  J N Perks
Solicitors:
           Appellant:  Zeeman Kable & Page
           Respondent:  Director of Public Prosecutions

Judgment Number: [2002] TASSC 61
Number of paragraphs: 13

Serial No 61/2002
File No CCA 48/2002

P v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
EVANS J
BLOW J
6 September 2002

Orders of the Court:

Appeal allowed.

Convictions and sentence quashed.

New trial ordered.

Serial No 61/2002
File No CCA 48/2002

P v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
6 September 2002

I agree with the Reasons for Judgment prepared by Evans J and with the orders he proposes.

File No CCA 48/2002

P v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
6 September 2002

The appellant was indicted to stand trial on four counts of indecently assaulting a girl who I will refer to as "B", one count of indecently assaulting a girl who I will refer to as "K", and four counts of indecently assaulting a girl who I will refer to as "D".

At the outset of the appellant's trial, his counsel applied for an order that the indictment be severed and that the appellant be tried on the counts referable to each complainant separately. Ordinarily, where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on the other counts, Sutton v R (1983) 152 CLR 528 at 531, De Jesus v R (1986) 61 ALJR 1 at 3 and Hoch v R (1988) 165 CLR 292 at 294. When the evidence of each of a number of victims of sexual offences satisfies the common law requirements for the admission of similar fact evidence on the various charges based on the complaints of each victim, before the evidence may be admitted, the trial judge must be satisfied that there is no reasonable possibility that the similarities between their evidence are not the result of concoction, Hoch v R (supra). The concept of concoction is not confined to a combination between the complainants as to their evidence and extends to circumstances in which one complainant concocts evidence after becoming aware of the allegations of another against an accused, BRS v R (1997) 191 CLR 275 at 301. The focus of an enquiry as to concoction is on the factual (as distinct from theoretical) possibility of concoction, R v O G D(No 2)

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 P v R

Details

AGLC: P v R [2002] TASSC 61
Case: [2002] TASSC 61
Decision Date: 6 September 2002

CaseChat Overview and Summary

In the Court of Criminal Appeal of Tasmania, the case of P v R was heard on appeal by Cox CJ, Evans J, and Blow J. The appellant, P, appealed against convictions for indecently assaulting three girls, referred to as B, K, and D, and sought to quash his convictions and sentences, claiming a miscarriage of justice due to the admission of similar fact evidence. The central issue was whether the trial judge erred in allowing evidence of similar fact incidents involving different victims, B and D, to be heard together, without adequately exploring the possibility of their evidence being influenced or concocted by another party, R. The court was required to determine if the evidence was admissible under the common law principles that require the exclusion of any reasonable possibility of concoction.

The Court of Criminal Appeal found that the trial judge had not sufficiently addressed the possibility that the similarities in the evidence of B and D were due to concoction by R, who had discussed the appellant's alleged conduct with D. This issue was raised during D's trial testimony, which differed from her voir dire evidence. The court concluded that the trial judge should have further investigated this possibility and considered whether the evidence was still admissible under the principle set out in Hoch v R, which requires that there be no reasonable possibility of concoction. Given that this was not sufficiently explored, the court held that the evidence was inadmissible and that the appellant suffered a miscarriage of justice. Consequently, the court allowed the appeal, quashed the convictions and sentences, and ordered a new trial. The court noted that the trial occurred before the implementation of the Evidence Act 2001, which would not have altered the outcome of this appeal.

Orders