R v Green (No 2) - [2019] ACTSC 126

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Green (No 2)
Citation:	[2019] ACTSC 126
Hearing Date:	12 March 2019
DecisionDate:	12 March 2019
ReasonsDate:	14 May 2019
Before:	Loukas-Karlsson J
Decision:	See [44].
Catchwords:	CRIMINAL LAW – EVIDENCE – Admissibility – discretionary and mandatory exclusions of evidence – whether representation can be admitted under s 65(2)(c) of the Evidence Act 2011 (ACT) – where representation inconsistent with another representation
Legislation Cited:	Crimes Act 1900 (ACT) s 28 Evidence Act 2011 (ACT) ss 65, 67, 135, 136, 137, 138, 165 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 51, 52, 53, 54, 55, 56, 57, 58, 59 Human Rights Act 2004 (ACT) ss 11, 28, 30
Cases Cited:	IMM v The Queen [2016] HCA 14; 257 CLR 300 Lai and Nguyen v The Queen [2017] NSWCCA 263 Munro v The Queen [2014] ACTCA 11 R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603 R v Clark [2001] NSWCCA 494; 123 A Crim R 506 R v Ford [2009] NSWCCA 306; 201 A Crim R 451 R v Popovic; R v Koloamatangi (No 4) [2017] NSWSC 1137 R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 R v YL [2004] ACTSC 115; 187 FLR 84 Sio v The Queen [2016] HCA 32; 259 CLR 47 Williams v The Queen [2000] FCA 1868; 119 A Crim R 490
Parties:	The Queen (Crown) Timothy Green (Accused)
Representation:	Counsel S Naidu (Crown) R Thomas (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Prudential Legal Solutions (Accused)
File Numbers:	SCC 204 of 2018; SCC 205 of 2018

LOUKAS-KARLSSON J

Introduction

In the course of the trial in which the accused, Timothy James Green, was charged with two counts of choking, suffocating or strangling another person contrary to s 28(2)(a) of the Crimes Act 1900 (ACT), the Crown made an application to adduce evidence under s 65 of the Evidence Act 2011 (ACT) (Evidence Act).

In particular, the Crown sought to adduce evidence from a Constable Justin Mesman to whom the child of the accused (BSH) was said to have disclosed information regarding the alleged conduct. The application was opposed by the accused on a number of grounds.

On 12 March 2019, I refused the Crown’s application. What follows are my reasons for that decision.

Background

It was the Crown’s case that in the early hours of 13 March 2018, the accused, in the course of an argument with his mother (EC), placed his hands around her neck and squeezed (Count 1), then subsequently, placed a pillow over EC’s head, smothering her with it (Count 2). During the course of the argument in which the alleged offences were said to have occurred, BSH, who was 10 years of age at the time, was in the adjoining room.

On 1 March 2019, the Friday prior to the commencement of the trial, the Crown had attempted to file and serve a subpoena to give…

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 Green (No 2)

Details

AGLC: R v Green (No 2) [2019] ACTSC 126
Case: [2019] ACTSC 126
Decision Date: 12 March 2019

CaseChat Overview and Summary

In the case of R v Green, the defendant, Mr Green, was prosecuted for offences related to the possession of firearms. The dispute centred around the admissibility of certain representations made by the defendant in the course of a police interview. The case was heard in the Supreme Court of the Australian Capital Territory.

The primary legal issue before the court was whether certain representations made by Mr Green could be admitted as evidence under section 65(2)(c) of the Evidence Act 2011 (ACT), which pertains to discretionary and mandatory exclusions of evidence. The court was required to determine whether the representations could be admitted despite being inconsistent with another representation made by the defendant. The defence argued that the inconsistent representations should be excluded from evidence, while the prosecution contended that they were admissible and relevant to the case.

The court, in considering the provisions of section 65(2)(c), examined the nature of the inconsistent representations and their relevance to the charges. The court found that the representations, although inconsistent, were not subject to the mandatory exclusion under section 65(2)(c) and could be admitted at the court's discretion. The court held that the probative value of the representations outweighed any prejudicial effect they might have on the defendant. Consequently, the representations were deemed admissible as evidence.

The final orders of the court, detailed in [44], reflect the court's decision to admit the inconsistent representations as evidence in the trial. The court ruled that the representations were relevant and could assist in establishing the facts of the case, thereby impacting the defendant's defence. The trial proceeded with these representations considered as part of the evidence.

Orders

Orders of the court

See [44].

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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