R v Johnston - [2012] ACTSC 89

R v THOMAS WILLIAM JOHNSTON
[2012] ACTSC 89 (8 June 2012)

CRIMINAL LAW – EVIDENCE – Crown application to adduce Tendency Evidence – evidence sought to be adduced by the Crown is of significant probative value – application conditionally allowed

CRIMINAL LAW – EVIDENCE – Crown application to adduce Coincidence Evidence – evidence sought to be adduced by the Crown is not coincidence evidence according to s 98 of the Evidence Act 2011 (ACT) – application refused

Evidence Act 1995 (Cth), ss 97
Evidence Act 2011 (ACT), ss 55, 56, 97, 98, 101, 137,

AE v The Queen [2008] NSWCCA 52
BP v The Queen; R v BP [2010] NSWCCA 303
R v Cittadini (2008) A Crim R 492
R v Ford (2009) 201 A Crim R 451
R v Harker [2004] NSWCCA 427
R v Shamouil [2006] NSWCCA 112

No. SCC 240 of 2010

Judge: Burns J
Supreme Court of the ACT

Date: 8 June 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 240 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

R

v

THOMAS WILLIAM JOHNSTON

REASONS FOR RULING

Judge:  Burns J
Date:  8 June 2012
Place:  Canberra

On 7 February 2012 the accused, Thomas William Johnston, was arraigned on an indictment dated 16 December 2011 containing the following counts:

FIRST COUNT:         That on the 3^rd day of November 2009 at Canberra in the Australian Capital Territory THOMAS WILLIAM JOHNSTON intentionally and unlawfully administered to EK a stupefying or overpowering drug or poison or any other injurious substance likely to endanger human life or cause grievous bodily harm.
SECOND COUNT:      And in the alternative that on the 3^rd day of November 2009 at Canberra aforesaid THOMAS WILLIAM JOHNSTON assaulted EK and thereby occasioned to her actual bodily harm.
THIRD COUNT:         And further that on the 27^th day of February 2009 at Canberra aforesaid THOMAS WILLIAM JOHNSTON used a child, namely NK, being a child under the [age] of 12 years, for the production of child pornography.
FOURTH COUNT:      And further that on or about the 28^th day of March 2009 at Canberra aforesaid THOMAS WILLIAM JOHNSTON used a child, namely either EK or NK, each being a child under the [age] of 12 years, for the production of child pornography.
FIFTH COUNT:         And further that on the 6^th day of November 2009 at Canberra aforesaid THOMAS WILLIAM JOHNSTON intentionally possessed child pornography.

To each of these charges the accused entered pleas of not guilty.

The accused had previously been arraigned on an indictment dated 19 August 2010 in similar terms to the indictment dated 16 December 2011, save that the earlier indictment did not include the charges of using a child for the production of child pornography, which are Counts 3 and 4 on the later indictment.

On or around 25 January 2012 the Crown filed and served on the accused a Notice of Intention to Adduce Tendency Evidence and a Notice of Intention to Adduce Coincidence Evidence.

On 6 February 2012…

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 Johnston

Details

AGLC: R v Johnston [2012] ACTSC 89
Case: [2012] ACTSC 89
Decision Date: 8 June 2012

CaseChat Overview and Summary

The court heard an application by the Crown to introduce certain evidence in the case of R v Johnston. The defendant, Johnston, was facing criminal charges, and the Crown sought to adduce tendency and coincidence evidence to support its case. The application was heard in the ACT Supreme Court.

The legal issues before the court were whether the evidence proposed by the Crown was admissible under the provisions of the Evidence Act 2011 (ACT). Specifically, the court had to determine whether the tendency evidence had significant probative value and whether the proposed coincidence evidence fell within the definition of coincidence evidence as per section 98 of the Act.

The court examined the proposed evidence and determined that the tendency evidence was of significant probative value and therefore conditionally allowed its admission. However, the court found that the evidence sought to be adduced as coincidence evidence did not fit the definition provided in section 98 of the Evidence Act 2011 (ACT). Consequently, the Crown's application to introduce this evidence was refused.

The court's final orders were that the Crown's application to adduce tendency evidence was conditionally allowed, while the application to introduce coincidence evidence was refused.

Orders