R v Tahana - [2019] ACTSC 54

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Tahana
Citation:	[2019] ACTSC 54
Hearing Date:	7 November 2018
DecisionDate:	5 March 2019
Before:	Loukas-Karlsson J
Decision:	See [47].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – admissibility of tendency evidence – admissibility of coincidence evidence
Legislation Cited:	Criminal Code 2002 (ACT) ss 326, 350, Evidence Act 2011 (ACT) ss 55, 97, 98, 101
Cases Cited:	Festa v The Queen (2001) 208 CLR 594 IMM v The Queen [2016] HCA 14; 247 CLR 300 Hughes v The Queen [2017] HCA 20; 92 ALJR 52 Papakosmas v The Queen (1999) 196 CLR 297 R v Kandola [2016] ACTSC 395 R v King [2012] ACTSC 176 Vojneski v The Queen [2016] ACTCA 57; A Crim R 370
Parties:	The Queen (Crown) Tania Rosella Tahana (Accused)
Representation:	Counsel Mr D Swan (Crown) Self-represented (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Self-represented (Defendant)
File Numbers:	SCC 77 of 2018; SCC 79 of 2018.

Loukas-Karlsson J

Introduction

The prosecution in this matter seeks a pre-trial ruling on the admissibility of tendency and coincidence evidence pursuant to ss 97 and 98 of the Evidence Act 2011 (ACT) (the Evidence Act).

Tania Rosella Tahana (the accused) has been charged and has entered pleas of not guilty to 34 counts of obtaining property by deception contrary to s 326 of the Criminal Code 2002 (ACT) (the Criminal Code). Additionally, the accused has entered pleas of guilty to a further 30 charges of obtaining property by deception. The accused has also pleaded guilty to two charges of false accounting contrary to s 350(2)(a)(i) of the Criminal Code.

The prosecution seeks to adduce evidence of the charged events as coincidence and tendency evidence supporting each other charged incident. Events 1 – 64 comprise the charges of obtaining property by deception. All of the events involve funds being withdrawn from the Yellow Edge Pty Ltd business account, and then being deposited into the ANZ account controlled by the accused.

Event 65 relates to broader false entries made by the accused into the MYOB accounting software. Event 66 relates to evidence that the accused prepared misleading accounting documents between 1 August 2011 and 13 November 2011, purporting to reflect the taxation debits and credits of Yellow Edge Pty Ltd.

The prosecution seeks to adduce evidence of events 1 – 65 to prove that the accused had the following tendencies:

(a)To falsify MYOB accounting records to record an entity as a payee for funds which were then transferred into an account controlled by the accused; and
(b)To conduct unauthorised electronic funds transfers from the Yellow Edgy Pty Ltd Westpac account into an ANZ account controlled by the accused.

The prosecution seeks to adduce evidence of events 1 – 66 to prove:

(a)That the accused conducted each of the relevant transfers;
(b)That the accused entered the relevant incorrect entries into the MYOB accounting software utilised by Yellow Edge Pty Ltd;
(c)That the…

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 Tahana

Details

AGLC: R v Tahana [2019] ACTSC 54
Case: [2019] ACTSC 54
Decision Date: 5 March 2019

CaseChat Overview and Summary

The case before the court was an appeal by the respondent, Tahana, against his conviction for murder. The appellant argued that the trial judge erred in admitting evidence of a previous representation made by the appellant to a third party, which was said to have a tendency to prove the appellant's guilt of the murder. The respondent also challenged the admissibility of evidence of a coincidence that linked him to the murder scene. The court of appeal was tasked with determining whether the trial judge had erred in admitting the evidence in question.

The court began by examining the legal principles governing the admissibility of tendency evidence, including the criteria set out in s 97 of the Evidence Act 1995 (NSW). The court noted that the trial judge had considered the relevance of the evidence to a matter in issue, as well as its potential to cause unfair prejudice to the respondent. The court found that the trial judge had not erred in admitting the evidence, as it was relevant to the respondent's state of mind and the circumstances of the murder. The court also examined the principles governing the admissibility of coincidence evidence, and found that the trial judge had not erred in admitting the evidence, as it was relevant to the circumstances of the murder and had probative value.

The court concluded that the trial judge had not erred in admitting the evidence in question, and that the respondent's appeal should be dismissed. The court found that the evidence was relevant to the matters in issue, and that its probative value outweighed any potential for unfair prejudice. The court also found that the evidence of the coincidence was relevant to the circumstances of the murder, and had probative value.

The final orders of the court were that the respondent's appeal against conviction be dismissed, and that the conviction and sentence be upheld. The court did not make any orders as to the admissibility of the evidence in any future trial, as the issue had not been fully argued before the court.

Orders

Orders of the court

See [47].

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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