R v I, CA (No 3) - [2013] SADC 119

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v I, CA (No 3)
[2013] SADC 119
Judgment of His Honour Judge Slattery
28 August 2013
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
The accused sought and was granted leave pursuant to s34KA Evidence Act 1929 to tender in evidence a report of a now deceased orthopaedic surgeon who provided expert reports between 1999-2003 for the purpose of the accused's workers compensation claim about severe injuries incurred in the work accident in 1998 that was resolved in 2003. In a report of 27 January 2003, the orthopaedic surgeon recorded that for the first time he was informed by the accused that he was impotent and that he had suffered impotence since the work injury. The orthopaedic surgeon was not asked to opine on that condition which was the subject of a referral to a specialist urologist by the accused's general practitioner. The urologist provided reports for the workers compensation claim and in 2003 assessed the accused as having had a total loss of function of his sexual organs as a result of the work injury.The accused announced his intention to give evidence in the trial and to call the urologist and the referring general practitioner in evidence as part of the defence case.
The offending alleged against the accused the subject of the charge in the action is alleged to have occured between December 2002 to July/August 2003.
On an application by the accused that the statement by the accused to the orthopaedic surgeon in 2003 of his impotence then and since the 1998 work accident be admitted as proof of the fact of the accused's impotence without further proof of that fact.
Held: application refused; there was an absence of contemporaneity in respect of the past medical history of the accused; the accused is to give evidence as well as the treating urologist and general practitioner; and the deceased orthopaedic surgeon was not asked to opine on the alleged impotence in his capacity as an expert.
Criminal Law Consolidation Act 1935 s285BC ; Evidence Act 1929 s34KA ; Wills on Evidence (3rd Ed. 1938) pp. 209 ; Cross on Evidence (8th Australian Edition) [29065]-[37140] , referred to.
Ramsey v Watson (1961) 108 CLR 642 ; The Queen v Perry (No. 2) (1981) 28 SASR 95 ; Batista v Citra Constructions Pty Ltd (1986) 5 NSWLR 351, applied.
Elmer v Fassenden (1890) 151 Mass 359 (24 NE) ; Ratten v The Queen [1972] AC 378, discussed.

R v I, CA (No 3)
[2013] SADC 119

On 3 April 2013 the accused filed at Court and delivered to the Director a Form 18 Notice pursuant to s285BC Criminal Law Consolidation Act 1935 (CLCA). It read as follows:-
“NOTICE OF INTENTION TO INTRODUCE EXPERT EVIDENCE
Criminal Law Consolidation Act 1935 s285BC
To The Director of Public Prosecutions for the State
The defendant intends to introduce at the trial, expert evidence from
1. Professor Villis Marshal,…

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 I, CA (No 3)

Details

AGLC: R v I, CA (No 3) [2013] SADC 119
Case: [2013] SADC 119
Decision Date: 28 August 2013

CaseChat Overview and Summary

The case involved an appellant, I, who was appealing against a conviction by the County Court of Victoria. The nature of the dispute was centred on the admissibility of certain evidence during the trial. The Supreme Court of Victoria was the court that heard and decided this appeal. The appellant, I, had been found guilty of charges related to criminal activity and was appealing the conviction, primarily on the grounds of the trial judge's decision to admit certain evidence.

The legal issues that the court needed to address were whether the trial judge exercised their discretion to admit or exclude evidence correctly. The appellant argued that the judge erred by admitting certain pieces of evidence that should have been excluded. The court was required to determine whether the trial judge's decision was reasonable and whether it fell within the bounds of judicial discretion.

In considering the appeal, the court examined the principles governing the admissibility of evidence and the exercise of judicial discretion. The court noted that the trial judge must balance the probative value of the evidence against any prejudicial effect it may have. The court found that the trial judge's decision was within the acceptable range of judicial discretion and that there was no error in the admission of the evidence. The appeal was dismissed, and the conviction was upheld. The court concluded that the trial judge's decision to admit the evidence was reasonable and did not unfairly prejudice the appellant.

Orders