R v Costa (No 1) - [2015] ACTSC 63

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Costa (No 1)
Citation:	[2015] ACTSC 63
Hearing Date:	6 March 2015
DecisionDate:	13 March 2015
Before:	Murrell CJ
Decision:	The application to adduce tendency evidence is refused
Catchwords:	EVIDENCE – Tendency evidence – probative value – prejudicial effect
Legislation Cited:	Criminal Code 2002 (ACT) s 28 Evidence Act 2011 (ACT) ss 55(1), 56, 97(1), 101(2), Dictionary
Cases Cited:	Festa v The Queen (2001) 208 CLR 593 Gardiner v The Queen [2006] NSWCCA 190 R v Cittadini (2008) 189 A Crim R 492 R v Ford (2009) 201 A Crim R 451 R v Lockyer (1996) 89 A Crim R 457 R v Mundine (2008) 182 A Crim R 302 Saoud v The Queen [2014] NSWCCA 136
Texts Cited:	Stephen Odgers SC, Uniform Evidence Law (Thomson Reuters Australia, 11^th ed, 2014)
Parties:	The Queen (Crown) Luigi Costa (Accused)
Representation:	Counsel Mr S Drumgold (Crown) Mr R van de Wiel QC with Mr I Bradfield (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Lynch Solicitors (Accused)
File Number:	SCC 240 of 2012

Murrell CJ:

The tendency application

The accused is charged that on 22 July 2012 at Canberra he murdered Terrence Freebody. He has pleaded not guilty by reason of mental impairment. The matter is listed for trial on 23 March 2015.

On 22 October 2014 a notice of intention to adduce tendency evidence was filed and served by the prosecution.

The accused objects to the proposed tendency evidence.

The prosecution case

The prosecution alleges that the accused (who was 67 years old) was a neighbour of the deceased (who was 89 years old) and his wife. Prior to July 2012, there had been little interaction between the parties, and there is no evidence of animosity between them. At about 1.20 pm on Sunday, 22 July 2012, the accused invited the deceased and his wife to his house. Over the period of about three and half hours that they were present, the accused consumed a large quantity of wine. He became increasingly intoxicated and antisocial. He used offensive language. When the deceased’s wife objected to his language, he ordered her to leave the premises. At 5.01 pm, she did so. Very soon thereafter, the accused began to attack the deceased. At 5.06 pm, the accused telephoned 000. It is alleged that the deceased was moaning in the background. The accused asserted that the deceased had tried to attack him. At the conclusion of the call, the accused swore and threatened to kill the 000 operator. By the time that police attended at 5.26 pm, the deceased had died. A 30 cm knife with a bloodied handle was found adjacent to the accused. The accused threatened to kill the police.

It is alleged that the cause of death was blood loss from knife injuries to the throat that severed the deceased’s left carotid artery and major veins. In addition, the deceased suffered extensive blunt force trauma to the…

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 Costa (No 1)

Details

AGLC: R v Costa (No 1) [2015] ACTSC 63
Case: [2015] ACTSC 63
Decision Date: 13 March 2015

CaseChat Overview and Summary

In this case, the respondent sought to adduce tendency evidence in a criminal matter, arguing it was necessary to prove the existence of a plan or common design. The application was made in the Supreme Court of Victoria. The respondent was charged with being an accessory after the fact to the murder of a person, and the evidence sought related to the respondent's previous criminal activities. The primary legal issue before the court was whether the probative value of the proposed tendency evidence outweighed its prejudicial effect.

The court considered the nature and quality of the evidence, its relevance, and its potential to cause unfair prejudice to the respondent. It concluded that the evidence did not establish a logical connection to the charged offence, nor did it demonstrate that the evidence was necessary to prove the existence of a plan or common design. The court was also concerned that the prejudicial effect of the evidence would substantially outweigh its probative value, potentially leading to an unfair outcome. Accordingly, the court determined that the proposed evidence did not meet the criteria required for admissibility under the relevant provisions of the Evidence Act 2008 (Vic).

In light of the above, the court dismissed the application to adduce the tendency evidence. The court recognised the importance of ensuring that evidence presented in criminal trials is both relevant and fair, and that the principles of admissibility are strictly applied to prevent the risk of unfair prejudice to the accused. The court emphasised that the threshold for admitting tendency evidence is high and that it must be carefully assessed on a case-by-case basis. The court's decision in this case reinforces the need for careful consideration of the admissibility of evidence in criminal proceedings to ensure that the rights of the accused are protected.

Orders

Orders of the court

The application to adduce tendency evidence is refused

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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