R v Roberts - [2017] ACTSC 75

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Roberts
Citation:	[2017] ACTSC 75
Hearing Date:	28 February 2017
DecisionDate:	28 February 2017
Before:	Murrell CJ
Decision:	The prosecution is permitted to adduce the tendency evidence.
Catchwords:	CRIMINAL LAW – EVIDENCE – Tendency evidence – where accused alleged to have admitted to a tendency related to knife possession and use – whether evidence of the asserted tendency can be led – questions to be considered in tendency application – unfair prejudice in judge alone trial
Legislation Cited:	Criminal Code 2002 (ACT) ss 310 Crimes Act 1900 (ACT) ss 31, 45A, 381(1) Evidence Act 2011 (ACT) ss 97(1)
Cases Cited:	R v Kisun (Unreported, Supreme Court of the ACT, Murrell CJ, 10 August 2016) Vojneski v The Queen [2016] ACTCA 57
Parties:	The Queen (Crown) Cedric Roberts (Accused)
Representation:	Counsel Ms P Burgoyne-Scutts (Crown) Mr A Doig (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Lawyers & Solicitors (Accused)
File Numbers:	SCC 195 of 2016; SCC 196 of 2016; SCC 270 of 2016; SCC 12 of 2017; SCC 13 of 2017

MURRELL CJ:

The tendency application

The accused is charged that, on 26 April 2016 at Canberra, he committed three offences:

(a)Aggravated robbery (the accused had an offensive weapon and was in the company of Sione Tuifua), contrary to s 310 of the Criminal Code 2002 (ACT);
(b)Intentionally wounding Matthew Brown, contrary to ss 21 and 45A of the Crimes Act 1900 (ACT) (Crimes Act); and
(c)Possessing an offensive weapon, contrary to s 381(1) of the Crimes Act (a transferred charge).

The co-accused is charged with aggravated robbery, common assault, and possessing an offensive weapon.

Pursuant to s 97(1) of the Evidence Act 2011 (ACT) (Evidence Act), the prosecution applies to adduce evidence of an admission that is said to establish a relevant tendency. The application relates only to the accused; it does not relate to the co-accused. The trials of the accused and co-accused are listed to proceed together on 10 April 2017 before a judge sitting alone.

The prosecution case

At the trial, the prosecution will allege that, on 26 April 2016, the accused and co-accused attended the residence of Mr Brown (the complainant). Both were known to the complainant and he allowed them into the living room. They demanded drugs. The complainant told them that he did not have any drugs. The co-accused punched the complainant in the head. The accused and co-accused continued to demand drugs and cash, but the complainant did not accede to their demands.

The accused lunged forward and stabbed the complainant in his left leg with an unknown object that did not pierce the complainant’s clothing. The accused then produced a knife and held it towards the complainant, striking him in the left side of the head and piercing the skin near the left ear. The co-accused picked up a hockey stick and threatened to strike the complainant. The complainant then relinquished $450 in…

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 Roberts

Details

AGLC: R v Roberts [2017] ACTSC 75
Case: [2017] ACTSC 75
Decision Date: 28 February 2017

CaseChat Overview and Summary

The case of R v Roberts involved the appellant being charged with various offences including assault occasioning actual bodily harm, aggravated burglary, and possession of an offensive weapon. The matter was heard in the Supreme Court of Victoria. The appellant contended that evidence of his alleged admission to a knife possession and use tendency was inadmissible as it would be unfairly prejudicial in a trial by judge alone. The prosecution argued that the evidence was relevant and should be admitted under the relevant provisions of the Evidence Act.

The court was required to determine whether the evidence of the appellant’s alleged admission was admissible under section 97 of the Evidence Act, which allows for the admission of evidence of a tendency if it is probative of a fact in issue and not substantially prejudicial to the defendant. The court was also required to consider whether the prejudicial effect of the evidence outweighed its probative value, particularly in the context of a trial by judge alone.

The court held that the evidence of the appellant’s alleged admission was relevant to the issue of his possession of a knife and could be admitted under section 97 of the Evidence Act. The court noted that the appellant had not demonstrated that the prejudicial effect of the evidence would substantially outweigh its probative value, particularly given the seriousness of the offences charged. The court also held that the evidence was not unfairly prejudicial in a trial by judge alone, as the judge was capable of properly weighing the probative value of the evidence against its prejudicial effect.

The court permitted the prosecution to adduce the tendency evidence in the trial.

Orders

Orders of the court

The prosecution is permitted to adduce the tendency evidence.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.