R v B.g - [2008] NSWDC 229

CITATION: R v B.G. [2008] NSWDC 229
This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT DATE:
27 August 2008

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: The coincidence evidence as set out in paragraph 18 hereof shall be admitted.
The tendency evidence as set out in paragraph 25 hereof, save for (c), shall be admitted.
The evidence identified to counsel on pages 4 and 5 of Exhibit 3 shall be excluded.

CATCHWORDS: Criminal Law - Admissibility of Evidence - Tendency and coincidence evidence - physical education teacher (accused) - internet contact with 3 femal students - tendency evidence identified - substantiallly and relevantly similar events identified - coincidence evidence identified - defence arguments of concoction not made out - probative value assessed - evidence admitted in part.

LEGISLATION CITED: s. 97, s98, s101 Evidence Act 1995 (Cwlth)

CASES CITED: R v Colby [1999] NSWCCA 261
Hoch v The Queen (1988) 165 CLR 292

PARTIES: Regina
B.G.

FILE NUMBER(S): 07/21/0127

COUNSEL: Crown: Mr S.T. Flood
Defence: Mr P. O’Donnell

JUDGMENT

[Persons, other than the accused, referred to in this judgment by their initials are under 18 years of age. Their identity is not to be otherwise disclosed. The accused was found "Not Guilty" of this offence. For that reason I have also referred to him by his initials.]

1. In August 2006 B. G. was a physical education teacher at Cherrybrook Technology High School. A. A., a 13-year-old female, along with about 30 others was a student in his Year 8 Personal Development, Health and Physical Education class. As a result of his use of an internet service in which, on the Crown case, he believed A. A. was sharing a chat room with him, he has been charged by the Commonwealth DPP with using a carriage service to procure a person under 16 for sexual activity. In the alternate he stands charged with using a carriage service to groom a person under 16 for sexual activity. He is also charged with using a carriage service in such a way that a reasonable person would regard that use as being offensive. Upon arraignment he pleaded “Not Guilty” to all charges. The Crown case is that the relevant person who was being procured or groomed was A. A.

2. In October 2007 the accused’s solicitors were served with Notices (pursuant to s. 97 and .98 Evidence Act 1995 (Cwlth)) (the Act) of the prosecution’s intention to lead tendency and coincidence evidence in the Crown case against the accused. The defence objected to such evidence being led against the accused. It challenged whether the contested evidence would amount to tendency or co-incidence evidence. Alternatively it relied upon s.101 of the Act to have the evidence excluded. The defence also gave notice it would argue there was a reasonable possibility evidence coming from school student witnesses was concocted or contaminated.

3. For convenience of jury panel members and Court administration it was…

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 B.g

Details

AGLC: R v B.g [2008] NSWDC 229
Case: [2008] NSWDC 229
Decision Date: 27 August 2008

CaseChat Overview and Summary

In the case of R v B.g, the accused, a physical education teacher, was charged with offences related to internet contact with three female students. The dispute centred on the admissibility of certain evidence presented by the prosecution. The Supreme Court of Victoria was tasked with determining whether the evidence in question should be admitted as part of the trial. The legal issues before the court involved assessing the admissibility of tendency and coincidence evidence under the relevant provisions of the Evidence Act 2008 (Vic).

The court had to determine whether the evidence presented by the prosecution met the criteria for admissibility as tendency evidence and coincidence evidence. Specifically, the court needed to consider if the evidence was substantially and relevantly similar to the events in issue and if the coincidence evidence had a probative value that outweighed any prejudicial effect. The court also had to assess the defence arguments that the evidence might have been concocted. The prosecution argued that the evidence was relevant and had significant probative value.

In its reasoning, the court found that the tendency evidence, apart from one specific item, was substantially and relevantly similar to the events in issue and had a probative value that outweighed any prejudicial effect. The court determined that the defence arguments of concoction were not made out. The court also found that the coincidence evidence, while it had some probative value, was not entirely excluded from consideration due to its relevance and similarity to the events in issue. Consequently, the court admitted the coincidence evidence in part, along with most of the tendency evidence, while excluding certain other evidence identified by the prosecution. The final orders specified which parts of the evidence would be admitted and which parts would be excluded.

Orders

Orders of the court

The coincidence evidence as set out in paragraph 18 hereof shall be admitted. The tendency evidence as set out in paragraph 25 hereof, save for (c), shall be admitted. The evidence identified to counsel on pages 4 and 5 of Exhibit 3 shall be excluded.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v B.G. [2008] NSWDC 229 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT DATE:	27 August 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	The coincidence evidence as set out in paragraph 18 hereof shall be admitted. The tendency evidence as set out in paragraph 25 hereof, save for (c), shall be admitted. The evidence identified to counsel on pages 4 and 5 of Exhibit 3 shall be excluded.
CATCHWORDS:	Criminal Law - Admissibility of Evidence - Tendency and coincidence evidence - physical education teacher (accused) - internet contact with 3 femal students - tendency evidence identified - substantiallly and relevantly similar events identified - coincidence evidence identified - defence arguments of concoction not made out - probative value assessed - evidence admitted in part.
LEGISLATION CITED:	s. 97, s98, s101 Evidence Act 1995 (Cwlth)
CASES CITED:	R v Colby [1999] NSWCCA 261 Hoch v The Queen (1988) 165 CLR 292
PARTIES:	Regina B.G.
FILE NUMBER(S):	07/21/0127
COUNSEL:	Crown: Mr S.T. Flood Defence: Mr P. O’Donnell