R v Lang

[2017] ACTSC 327

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Lang

Citation:

[2017] ACTSC 327

Hearing Date:

17 August 2017

DecisionDate:

17 August 2017

Before:

Mossop J

Decision:

Application dismissed.

Catchwords:

EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – application to adduce tendency evidence – where the making of an application will not substantially alter the extent of evidence to be called – where there is a real risk that any ruling on tendency evidence will need to be reconsidered at the trial – decline to make orders sought – application dismissed – turns on own facts

Legislation Cited:

Evidence Act 2011 (ACT), ss 18, 128, 192A

Parties:

The Queen (Crown)

Darinka Irene Lang (Respondent)

Representation:

Counsel

S Saikal-Skea (Crown)

S Whybrow (Respondent)

Solicitors

ACT Director of Public Prosecutions (Crown)

Sharman Robertson Solicitors (Respondent)

File Number:

SCC 100 of 2017

MOSSOP J:

Introduction

1. I have had the benefit of what have been very helpful submissions from counsel for both sides.  The manner in which the tendency evidence in this case is to be used is not the usual situation.  The tendency sought to be established is that of a person alleged to be the long-term partner of the accused.  It is sought to establish a tendency to sell illicit drugs and to, as a consequence, make a substantial monetary profit.  The Crown proposes to lead evidence of three incidents.  It proposes to lead evidence that those incidents, not only for the direct purpose of showing an association between the sale of illicit drugs and deposits made by the accused into her account but also seeks to use those incidents so as to establish a tendency to sell illicit drugs for substantial profit and by that tendency, to demonstrate, as part of a circumstantial case, that the whole or substantially the whole of the amounts charged, was the product of the proceeds of crime.

1. Mr Johnston pleaded guilty to a charge arising out of the third of the incidents.  No charges arose out of the first and second incidents.  The first incident involved him being found with a sum of approximately $40,000 in his vehicle.  The second incident involved a person who had attended the house where he lived, being found to have a small quantity of heroin on him when he left the house. 

1. A tendency application is normally based upon the evidence that witnesses are expected to give. In the present case, there is some uncertainty as to the evidence that one of the key witnesses to be called by the Crown, namely Mr Johnston, will give. That is because, at least on the Crown case, he is the long-term partner of the accused and may be able to take an objection under s 18 of the Evidence Act 2011 (ACT), to the giving of evidence. The evidence that he would give, may also tend to incriminate him, although that is an issue which could be dealt with by the granting of a certificate under s 128 of the Evidence Act. 

1. Clearly the process under s 192A of the Evidence Act is often of great utility in resolving evidentiary issues in advance of the hearing.  That is particularly so where a ruling on a particular issue may significantly affect the strength of the case which is brought against an accused.  Further, it may also significantly alter the extent of the evidence which is sought to be led in the case.  It will often be useful to deal with the question in advance, leaving other objections about the admissibility of evidence, the subject of a ruling, to be dealt with at trial.  In the present case, evidence about two out of the three incidents is to be led at trial in any event as non-tendency evidence because of the association between those events and the making of deposits by the accused into one of her bank accounts.  The evidence in relation to the first incident, which is not associated with such payments, is likely to be the evidence of a single police officer relating to the circumstances in which he discovered that Mr Johnston had $40,000 in his vehicle. As a consequence, this is not a situation where the extent of evidence that has to be called at the hearing of the matter will be substantially altered by a pre-trial ruling. 

1. It is also a case in which, because of the uncertainty arising by reason of the objections that are available for the calling of evidence, there is a risk that any ruling on the admissibility of evidence on a tendency basis may be overtaken by an objection to the admissibility of evidence at the trial. This affects the weighing exercise that must be undertaken in relation to whether or not the evidence has substantial probative value.  In circumstances where a pre-trial ruling is not likely to substantially shorten or otherwise affect the evidence to be called at the hearing, and where there is at least a real risk that any tendency ruling would need to be reconsidered in the light of the evidence that is actually available to be called at the hearing, and where an election has been made for trial by judge alone, I do not consider it appropriate to make a ruling on the admissibility of evidence for tendency purposes in advance of the hearing.

1. Unlike the situation which would be involved if the trial was by jury, there will be much less of a practical impediment to hearing and determining the scope of the evidence in advance of a ruling as to whether or not it is admissible for tendency purposes. The evidence in relation to two incidents will have to be given in any event. The evidence in relation to the third incident can be given, effectively on a voir dire, and if the ultimate ruling is that it is admissible for tendency purposes, then the evidence that has been given on the voir dire can be so admitted for that purpose, or otherwise ignored. As a consequence, in so far as the Application in Proceeding dated 24 July 2017 impliedly sought that the ruling referred to therein, be made pursuant to section 192A of the Evidence Act, then I dismiss the application. 

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 3 November 2017