R v Garland - [1999] TASSC 100

[1999] TASSC 100

CITATION: R v Garland [1999] TASSSC 100

PARTIES:  R
  v
  GARLAND, Colin James

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  468/1999
DELIVERED ON:  12 August 1999
DELIVERED AT:  Burnie
HEARING DATES:  19, 22 July, 4 - 6, 9 - 13, 16, 17 August 1999
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused person - Character and previous convictions - Relevance - Imputations by accused on character of prosecutor or witness.
Evidence Act 1910 (Tas), ss85(1)(c), (10)(c)(ii), 102A(b).

R v Unsworth 63/1986; R v Harris 12/1988; R v Jessup [1974] Tas R 64; Selvey v Director of Public Prosecutions [1970] AC 304; R v Sherrin 97/1991, considered.
Phillips v R (1985) 159 CLR 45, applied.
Aust Dig Criminal Law [564-565]

REPRESENTATION:

Counsel:
             Accused:  G A Richardson and S Geary
             Crown:  L A Mason
Solicitors:
             Accused:  G A Richardson
             Crown:  Director of Public Prosecutions

Judgment Number: [1999] TASSC 100
Number of Paragraphs: 16

Serial No 100/1999
File No 468/1999

THE QUEEN v COLIN JAMES GARLAND

REASONS FOR JUDGMENT SLICER J

(RULING DURING COURSE OF TRIAL) 12 August 1999

The Crown seeks a ruling on whether or not it is entitled to lead evidence of convictions of the accused for breaches of restraint orders, such convictions occurring during the period encompassed by the indictment and arising out of conduct by the accused towards the complainant. Varying bases are advanced which are said to warrant the reception of evidence, but at the forefront is the reliance on the principles concerning the reception of character evidence. The Evidence Act 1910 ("the Act"), s85(1) permits the cross-examination of an accused on other offences for which he has been charged in circumstances where:

"(c) the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution;"

The Act, s85(11), enables the prosecution to lead evidence of other convictions or charges where, "the nature or conduct of the defence is such as is referred to in subsection (10)(c)". The nature of the legislative provisions has been considered in Tasmanian cases, such as R v Unsworth 63/1986, R v Harris 12/1988 and R v Jessup [1974] Tas R 64. The distinction is as permitted by the principles discussed in Selvey v Director of Public Prosecutions [1970] AC 304.

The cross-examination of the complainant has been directed at a wide range of issues, many of which concern credibility. Among the issues canvassed have been her exaggeration of the number and nature of contact, misinterpretation of innocent contact, failure to notify police of the presence of the accused inside her house yard, the possibility that others might have reason to cause harm to property, and whether or not she in fact found notes and coat-hangers at various places. Her credibility is central to the jury's resolution of matters in dispute. In those respects it will be accepted,…

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 Garland

Details

AGLC: R v Garland [1999] TASSC 100
Case: [1999] TASSC 100
Decision Date: 12 August 1999

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of R v Garland involved the defendant, Colin James Garland, being charged with various offences related to stalking and breaching restraining orders against the complainant. The Crown sought to introduce evidence of the defendant's previous convictions for breaching restraining orders involving the complainant, arguing that these were relevant to the credibility of the complainant and the defendant's state of mind. The court had to determine whether the evidence of the previous convictions was admissible under the Evidence Act 1910, specifically whether it was relevant to the credibility of the complainant or any imputations made by the defendant regarding the complainant's character.

The legal issues centred on the admissibility of evidence of the defendant's prior convictions under section 85(1)(c) of the Evidence Act, which allows for cross-examination on other offences if the nature of the defence involves imputations on the character of the prosecutor or any witness for the prosecution. The court considered whether the defendant's cross-examination of the complainant constituted an imputation on her character, and if so, whether the evidence of the previous convictions was relevant and admissible. The court also examined the exercise of discretion under section 102A(b) of the Evidence Act to exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice.

The court found that the cross-examination of the complainant did indeed touch on her credibility by making accusations that she had previously attempted to pervert justice and involve others in false statements. This constituted an imputation on her character, thus allowing for the reception of evidence of the defendant's previous convictions under section 85(1)(c) of the Evidence Act. The court held that the evidence was relevant to the credibility of the complainant and the state of mind of the defendant, and that the exercise of discretion did not warrant exclusion of the evidence. Therefore, the court ruled that the evidence of the previous convictions was admissible.

Additionally, the court addressed the Crown's attempt to introduce evidence regarding a restraint order in place at a time when the complainant and defendant allegedly engaged in consensual sex. The court ruled that this evidence, while tangentially relevant to the complainant's credibility, was not pertinent to the period in question and could potentially prejudice the defendant. However, if the defence were to introduce evidence of the alleged consensual encounter, the Crown could respond with evidence of the restraining order to counter the defence's claims.

The final orders of the court permitted the Crown to introduce evidence of the defendant's previous convictions for breaching restraining orders against the complainant, subject to the conditions outlined in the judgment. The court also allowed the Crown to respond with evidence of the restraining order if the defence introduced evidence of the alleged consensual encounter outside the period covered by the indictment.

Orders