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R v Amato

R v Amato

Case [2021] ACTSC 155 27 July 2021

Admissibility of Evidence

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Amato
Citation:	[2021] ACTSC 155
Hearing Dates:	19, 20 July 2021
DecisionDate:	27 July 2021
Before:	Murrell CJ
Decision:	Crown allowed to adduce evidence of some previous representations made by the deceased. Otherwise, applications refused
Catchwords:	EVIDENCE – PRE-TRIAL APPLICATION – Admissibility of evidence – admissibility of previous representations of the alleged victim – previous representations made before alleged victim’s death – where deceased diagnosed with vascular dementia – whether presumption of competence displaced – where representations made between 20 seconds and 5½ hours after asserted fact occurred – consideration of section 65(2)(b) of the Evidence Act 2011 (ACT) EVIDENCE – PRE-TRIAL APPLICATION – Admissibility of evidence – admissibility of tendency evidence concerning the accused – consideration of distinctiveness or consistency of tendency – consideration of prejudice to the accused
Legislation Cited:	Crimes Act 1900 (ACT) ss 15, 25 Evidence Act 1995 (NSW) ss 66A, 72 Evidence Act 2011 (ACT) ss 13, 55, 59, 61, 62, 65, 66A, 97, 101, 135, 137 Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT)
Cases Cited:	Bufton v The Queen [2019] VCA 96 Hughes v The Queen [2017] HCA 20; 236 CLR 338 IMM v The Queen [2016] HCA 14; 257 CLR 300 McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 Prasad v The Queen [2020] NSWCCA 349 R v GW [2016] HCA 6; 258 CLR 108 R v Hannes [2000] NSWCCA 503; 36 ACSR 72 R v Johnston [2012] ACTSC 89; 6 ACTLR 297 R v Kazzi [2003] NSWCCA 241; 140 A Crim R 545 R v Kitsun [2016] ACTSC 212 R v Kuzmanovic [2005] NSWSC 771 R v Mankotia [1998] NSWSC 295; 108 A Crim R 189 Sio v The Queen [2016] HCA 32; 259 CLR 47 Tasmania v Dolega [2016] TASSC 65; 26 Tas R Taylor v The Queen [2020] NSWCCA The Recyclers (NSW) Pty Ltd v Ayoub [2016] NSWSC 144 Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 Williams v The Queen [2000] FCA 1868; 119 A Crim R 490
Texts Cited:	Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 16^th ed, 2021)
Parties:	The Queen ( Crown) Mario Amato ( Accused)
Representation:	Counsel R Christensen ( Crown) J White SC ( Accused)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Accused)
File Number(s):	SCC 219 of 2020

MURRELL CJ:

The Trial

The accused, Mario Amato, is charged that on 13 November 2018 he:

(a)Committed manslaughter of Sheila Capper (the deceased) by an unlawful or dangerous act, contrary to s 15(2) of the Crimes Act 1900 (ACT) (Crimes Act); or, in the alternative,
(b)Caused grievous bodily harm to the deceased, contrary to s 25 of the Crimes Act.

The accused and the deceased were residents of the Southern Cross Care Residential Aged Care Facility located in Campbell (SCC).

At the time of the alleged offence,…

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 R v Amato

Details

AGLC: R v Amato [2021] ACTSC 155
Case: [2021] ACTSC 155
Decision Date

CaseChat Overview and Summary

The case of R v Amato involved a criminal trial where the accused, Mario Amato, was charged with manslaughter or grievous bodily harm of an elderly resident, Sheila Capper, who died following a fall at a residential aged care facility. The Crown sought to adduce evidence of previous representations made by the deceased and evidence of tendency regarding the accused's behaviour. The Court was required to decide the admissibility of this evidence under the Evidence Act 2011 (ACT). The Court found that some of the deceased's representations were admissible under s 65(2)(b) of the Evidence Act as they were made shortly after the incident and in circumstances that made it unlikely that they were fabricated. However, the representations made several hours after the incident were not deemed admissible as they did not meet the criteria of being made shortly after the asserted fact happened. The Court also found that the proposed tendency evidence did not meet the requirements for admission as it did not evidence a distinctive or consistent tendency and did not have significant probative value in proving the fact in issue. The Court concluded that the probative value of the admissible representations outweighed any prejudice to the accused, and thus, the Crown was allowed to adduce evidence of the previous representations made by the deceased on two occasions, while the other applications were refused.

Orders