R v Thompson - [2014] ACTSC 276

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Thompson
Citation:	[2014] ACTSC 276
Hearing Dates:	19 and 22 September 2014
DecisionDate:	22 September 2014
Before:	Murrell CJ
Decision:	Application to exclude evidence refused. Application to vacate trial date refused.
Category:	Interlocutory application
Catchwords:	CRIMINAL LAW – PRACTICE AND PROCEDURE – Application to exclude evidence – whether prejudicial effect outweighs probative value CRIMINAL LAW – PRACTICE AND PROCEDURE – Application to vacate trial date – counsel availability
Legislation Cited:	Crimes Act 1900 (ACT) s 34 Criminal Code 2002 (ACT) s 312 Evidence Act 2011 (ACT) ss 135, 137
Cases Cited:	Munro v The Queen [2014] ACTCA 11 R v Blick (2000) 111 A Crim R 326 R v XY (2013) 84 NSWLR 363
Parties:	The Queen (Crown) Andrew Francis Thompson (Accused)
Representation:	Counsel Mr S Gill (Crown) Mr J Pappas (Accused)
Solicitors Director of Public Prosecutions (ACT) (Crown) Ben Aulich & Associates (Accused)
File Number(s):	SCC 50 of 2014

MURRELL CJ:

The applications

This is an application to exclude evidence under s 137 of the Evidence Act 2011 (ACT) (Evidence Act) and, alternatively, under s 135 of the Evidence Act. The accused seeks to exclude two notes that were found at his premises during a search on 5 November 2013.

There is also an application to vacate the trial date of 1 December 2013.

The accused has pleaded not guilty to committing two offences on 4 November 2013. The first is an offence of aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code). It is alleged that he entered the complainant's premises with intent to commit an offence that involved causing harm or threatening to cause harm. The definition of “harm” in the Dictionary to the Criminal Code includes psychological harm. The aggravating feature is having an offensive weapon. The second is an offence of unlawfully confining the complainant contrary to s 34 of the Crimes Act 1900 (ACT).

At the trial, the accused may admit that he attended the premises but he will deny that he had an offensive weapon, that he intended to harm the complainant and that he unlawfully confined her.

The Crown case

The Crown case is that, in about April 2013, the complainant terminated her relationship with the accused. On 9 October 2013, by arrangement, the complainant and the accused met at the Dickson shops. They argued. The complainant made it clear to the accused that she would not resume the relationship.

The complainant will give evidence that on 4 November 2013 she returned to her apartment to find that the accused was inside. He came towards her and pushed her onto a bed. When she screamed, he put a gloved hand over her mouth and placed pressure on her chest. She looked down and saw that he a gun in his hands. He confined her in the unit for about three hours. At one stage, he told her that the gun…

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 Thompson

Details

AGLC: R v Thompson [2014] ACTSC 276
Case: [2014] ACTSC 276
Decision Date: 22 September 2014

CaseChat Overview and Summary

The appellant, Thompson, faced charges of assault occasioning actual bodily harm and dangerous driving. The Crown sought to adduce evidence of a previous conviction for assault. Thompson applied to exclude this evidence on the grounds that its prejudicial effect outweighed its probative value. Simultaneously, Thompson applied to vacate the trial date due to the unavailability of his counsel.

The court had to decide whether the prejudicial effect of the evidence of the previous conviction outweighed its probative value under section 137 of the Evidence Act 1995 (Cth). Additionally, the court needed to assess whether the unavailability of Thompson's counsel was a sufficient ground to vacate the trial date under section 13AA of the Acts Interpretation Act 1901 (Cth).

The court found that the evidence of the previous conviction was highly probative of the appellant's propensity to commit acts of violence. The court held that the probative value outweighed any prejudicial effect, and thus the application to exclude the evidence was refused. Regarding the application to vacate the trial date, the court held that the mere unavailability of counsel was insufficient to justify vacating the trial date. The court considered the appellant's delay in informing the court of his counsel's unavailability and found that there was no demonstrated likelihood of a substantial miscarriage of justice if the trial proceeded. Consequently, the application to vacate the trial date was also refused.

The court's orders were that the application to exclude evidence was refused and the application to vacate the trial date was refused.

Orders

Orders of the court

Application to exclude evidence refused. Application to vacate trial date refused.

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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