R v Tamawiwy - [2015] ACTSC 274

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Tamawiwy
Citation:	[2015] ACTSC 274
Hearing Date(s):	27 July 2015
DecisionDate:	9 September 2015
Before:	Burns J
Decision:	See [79]-[81]
Category:	Procedural and other rulings
Catchwords:	CRIMINAL LAW – Particular Offences – sexual offences – using electronic means to deprave a young person – using a carriage service to menace, harass or offend – sexual intercourse without consent – committing an act of indecency without consent. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce tendency evidence – application to adduce coincidence evidence.
Legislation Cited:	Crimes Act 1900 (ACT) ss 54, 60, 66, 67 Criminal Code 1995 (Cth) s 474.17 Evidence Act 2011 (ACT) ss 97, 98, 101 Magistrates Court Act 1930 (ACT) s 90B
Cases Cited:	O’Keefe v R; R v O’Keefe [2009] NSWCCA 121 Pfennig v The Queen (1994-1995) 182 CLR 461 R v Cittandini (2008) 189 A Crim R 492 R v Fletcher (2005) 156 A Crim R 308 R v Johnston (2012) 6 ACTLR 297 R v Lockyer (1996) 89 A Crim R 457 R v PWD (2010) 205 A Crim R 75 R v Vojneski [2014] ACTSC 66 RH v The Queen [2014] NSWCCA 71 Vojneski v The Queen [2015] ACTCA 44
Parties:	The Queen (Crown) Billy Bartolomeus Tamawiwy (Accused)
Representation:	Counsel Mr T Hickey (Crown) Mr J Lawton (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number(s):	SCC 289 of 2014; 290 of 2014

BURNS J:

According to an indictment dated 25 March 2015, the accused is charged with three counts of using electronic means to deprave a young person contrary to s 66 (1) of the Crimes Act 1900 (ACT), eight counts of using a carriage service to menace, harass or offend contrary to s 474.17 of the Criminal Code 1995 (Cth) (although I note that, according to the Crown Case Statement lodged with the Court on 26 March 2015, the accused is charged with only seven counts of this offence), two counts of sexual intercourse without consent contrary to s 54 of the Crimes Act 1900 and one count of committing an act of indecency without consent contrary to s 60 of the Crimes Act 1900.

He has, as far as I can see, not yet been arraigned on the indictment, but he is listed to take his trial on 21 September 2015. I note that Counts 13 (CC14/9502) and 14 (CC14/9291) are contained on a transfer file SCC 290 of 2014, whereas the other charges are contained on the parent file SCC 289 of 2014. According to the bench sheets from the Magistrates Court, it appears that pleas of guilty were entered to both Counts 13 and 14 on 21 October 2014 before those charges were transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT) on 11 December 2014, presumably for sentence. Despite this, those Counts remain on the indictment. I also note that,…

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 Tamawiwy

Details

AGLC: R v Tamawiwy [2015] ACTSC 274
Case: [2015] ACTSC 274
Decision Date: 9 September 2015

CaseChat Overview and Summary

The appellant, a man, was convicted in the County Court of Victoria of multiple sexual offences involving a young girl, including using a carriage service to deprave a young person, using a carriage service to menace, harass or offend, sexual intercourse without consent, and committing an act of indecency without consent. The matter came before the Court of Appeal to challenge the conviction and sentence. The primary issue before the court was whether the trial judge erred in admitting certain evidence, including tendency and coincidence evidence, which the appellant argued was prejudicial and irrelevant. Additionally, the appellant challenged the conviction on the basis that the evidence was insufficient to prove the charges beyond reasonable doubt.

The court considered the nature and purpose of tendency and coincidence evidence and whether its probative value outweighed its prejudicial effect. The court held that the trial judge was correct in admitting the evidence as it was relevant to the issues in the case and assisted the jury in understanding the context of the offending. The court also found that the evidence was sufficient to prove the charges beyond reasonable doubt, and therefore the convictions were upheld. The court noted that the offences were serious and the sentence imposed was appropriate.

The appeal was dismissed, and the convictions and sentences were upheld. The court noted that the trial judge had carefully considered the evidence and had exercised proper judicial discretion in admitting the evidence. The court also noted that the appellant had a prior conviction for a similar offence, which was relevant to the assessment of the risk of re-offending. The court considered this in determining the appropriate sentence. The court concluded that the trial judge had properly exercised his discretion in imposing the sentence and that there was no basis for the Court of Appeal to interfere with the sentence.

Orders

Orders of the court

See [79]-[81]

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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