COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Pattison v Tasmania [2017] TASCCA 13
PARTIES: PATTISON, Wayne Gregory v STATE OF TASMANIA
FILE NO: 3835/2016 DELIVERED ON: 31 August 2017 DELIVERED AT: Hobart HEARING DATE: 8 June, 31 August 2017 JUDGMENT OF: Wood, Pearce and Brett JJ
CATCHWORDS:
Criminal Law – Evidence – Propensity, tendency and co-incidence – Admissibility and relevancy – Tendency and co-incidence evidence under uniform evidence law – Generally – Trial judge erred in allowing tendency reasoning with respect to the appellant's interest in specialised fly-fishing equipment and possession of stolen fishing equipment – Evidence incorrectly characterised as tendency evidence – Lacked significant probative value and risk of impermissible reasoning.
Criminal Law – Evidence – Propensity, tendency and co-incidence – Admissibility and relevancy – Tendency and co-incidence evidence under uniform evidence law – Generally – Trial judge erred in allowing coincidence reasoning in the absence of a notice – Substantive irregularity – Coincidence notice a matter of procedural fairness and also ensures judicial scrutiny – Not satisfied that no substantial miscarriage of justice has occurred.
Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage – Other irregularities – Trial proceeded with unrepresented accused – Accused given written trial instructions and was well informed about the trial process and his rights – Trial judge ensured accused received fair trial.
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Twelve months' imprisonment for three counts of stealing and one count of aggravated burglary involving theft of specialised fishing equipment – Alleged specific error by trial judge in finding stolen property valued at tens of thousands of dollars when paucity of evidence about value of items – Error immaterial – Sentence not manifestly excessive.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel: Appellant: A Hensley (Unrepresented on grounds 1, 2, 5-8) Respondent: J Ansell Solicitors: Appellant: Legal Aid Commission of Tasmania Respondent: Director of Public Prosecutions
Judgment Number: [2017] TASCCA 13 Number of…
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.
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AGLC
Pattison v Tasmania [2017] TASCCA 13
Case
[2017] TASCCA 13
Decision Date
CaseChat Overview and Summary
The appeal concerned the admissibility of certain evidence presented at trial against the appellant, Mr. Pattison. The dispute centred on whether evidence of the appellant's interest in specialised fly-fishing equipment and his possession of stolen fishing equipment constituted inadmissible tendency evidence under the uniform evidence law. The matter was heard by Wood, Pearce, and Brett JJ of the Court of Criminal Appeal of Tasmania.
The primary legal issue before the court was whether the trial judge had erred in admitting the evidence in question as tendency evidence. This involved determining whether the evidence was correctly characterised as tending to prove that the appellant had a propensity to act in a particular way or possess a particular state of mind, as defined by section 97 of the uniform evidence law. The court also considered whether, if it were tendency evidence, it would have met the admissibility requirements under sections 97(1) and 101.
The Court of Criminal Appeal held that the evidence of the appellant's interest in specialised fly-fishing equipment and his possession of stolen fishing equipment was not tendency evidence. The court reasoned that this evidence was direct evidence of the appellant's actual conduct and actual state of mind at the relevant time, rather than evidence of a general tendency. The relevance of the evidence lay in its direct connection to the facts in issue, not in its capacity to suggest a propensity. The court distinguished this type of evidence from tendency evidence, which is led to establish a person's disposition to act in a certain way. The court concluded that the trial judge had incorrectly characterised the evidence as tendency evidence, and that its admission carried a risk of impermissible reasoning due to its lack of significant probative value when viewed through the lens of tendency.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The distinction between tendency evidence and evidence which evinces actual knowledge or actual state of mind at the time of the offence or motive has been drawn out in other cases. Where the evidence of conduct is proximate to, or part of a connected series with the charged act or acts, the evidence may be admissible as to the accused's state of mind at the time of the charged act: R v Gregory (Ruling No 2) [2009] VSC 509 per Whelan J at [49], [80]; TWL v The Queen [2012] NSWCCA 57 at [43]. In New South Wales, this kind of evidence is referred to as "transactional" evidence: R v Mostyn [2004] NSWCCA 97, 145 A Crim R 304 at [118]-[119]; R v Player [2000] NSWCCA 123, 217 ALR 578; R v Serratore [2001] NSWCCA 123 per Beazley JA (with whom Grove and Whealy JJ agreed) at [37], [44]. A question may arise as to whether the earlier conduct was too remote from the charged act to be evidence of state of mind: Gregory (above) at [82]. To qualify as tendency evidence, the evidence must be led for the purpose of establishing that a person has or had a tendency to act in a particular way or to have a particular state of mind: s 97. In a fundamental sense, in this case the evidence is not of a tendency to act in a certain way or have a particular state of mind, but rather is evidence of actual conduct and actual state of mind. Adopting the words of Gageler J in IMM (above), the relevance of the evidence in this case does not lie in its capacity to indirectly affect the assessment of the probability of the existence of the fact in issue of the accused's action or state of mind at the time or in the circumstances of the alleged offence. It is not indirect evidence. Having reference to the process of tendency reasoning set out in Elomar and noted above, it is not evidence of a tendency to act or have a state of mind from which it is inferred that the appellant's conduct or state of mind in relation to the offences conformed with that tendency. Thus, the evidence of the appellant's interest in specialised fly-fishing equipment was direct evidence that the appellant had an actual interest in specialised fly-fishing equipment, not a tendency to have that interest. Similarly, the evidence of his possession of stolen specialised fly-fishing rods and equipment does not reveal a tendency to possess stolen specialised fly-fishing equipment and accessories, but rather the relevance of the evidence is as direct evidence of his conduct, namely that he did possess such items as were found in his possession. I conclude that the evidence of the appellant's interest in specialised fly-fishing equipment and his possession of stolen specialised fly-fishing equipment and accessories is not tendency evidence. The appellant's argument on appeal was that the evidence was not admissible having regard to the tests in ss 97(1) and 101. In view of the attention given to the argument on appeal, the argument warrants consideration, notwithstanding the conclusion I have reached that the evidence did not have a tendency purpose. The question now considered is whether, if the evidence was properly characterised as tendency evidence, it would have been admissible having regard to the tests in ss 97(1) and 101.