Pattison v Tasmania

Case [2017] TASCCA 13


[2017] TASCCA 13

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.

Evidence Act 2001 (Tas), ss 97, 101(2), 135, 137.
Elomar v The Queen [2014] NSWCCA 303, 316 ALR 206 applied.
IMM v The Queen [2016] HCA 14, 257 CLR 300; Hughes v The Queen [2017] HCA 20; Leonard v The Queen [2006] NSWCCA 267, 67 NSWLR 545, referred to.
Aust Dig Criminal Law [2780]

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.

Evidence Act 2001 (Tas), ss 98, 99, 100, 101(2), 190.
Evidence Regulations 2012 (Tas), reg 5(3).
Criminal Code (Tas), s 402(2).
Weiss v The Queen [2005] HCA 81, 224 CLR 300, AK v Western Australia [2008] HCA 8, 232 CLR 438, referred to.
Aust Dig Criminal Law [2780]

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.

MacPherson v The Queen (1981) 147 CLR 512, applied.
Isherwood v Tasmania [2010] TASCCA 11; Dietrich v The Queen (1992) 177 CLR 292, considered.
Aust Dig Criminal Law [3469]

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
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Pattison v Tasmania [2017] TASCCA 13
Case
[2017] TASCCA 13
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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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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