R v UD; R v TF - [2020] ACTSC 45

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v UD; R v TF
Citation:	[2020] ACTSC 45
Hearing Date:	28 February 2020
Decision Date:	2 March 2020
Before:	Elkaim J
Decision:	The Crown applications under ss 97 and 98 are refused.
Catchwords:	CRIMINAL LAW – EVIDENCE – Judicial discretion to admit or
exclude evidence – application to adduce tendency and coincidence evidence – co-accused – identity in issue – whether the evidence has significant probative value – whether the
probative value of the evidence is outweighed by its potential prejudicial effect
Legislation Cited:	Court Procedures Act 2004 (ACT) s 76 Evidence Act 2011 (ACT) ss 97, 98, 101
Cases Cited:	Hughes v The Queen [2017] HCA 20; 263 CLR 338 Page v The Queen [2015] VSCA 357 R v Ceissman [2010] NSWCCA 50 Selby v R [2017] NSWCCA 40
Texts Cited:	Anthony Price, Bank Robbery for Beginners (Macmillan Australia, 2010) Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (27 June 2019)
Parties:	The Queen (Crown)
UD (Accused) TF (Accused)
Representation:	Counsel
R Christensen (Crown) B Morrisroe (Accused)
A Doig (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) Darryl Perkins Solicitors (Accused)
File Numbers:	SCC 282 of 2019; SCC 140 of 2018; SCC 283 of 2019
ELKAIM J:

1.       The two accused (the accused) are facing trials relating to a number of aggravated robberies that took place at various locations across the Australian Capital Territory.
2.       The individual trials have thus far been identified by a letter in the alphabet. The application which I am dealing with in this decision refers to Trial E. This upcoming trial will relate to six robberies, starting with a robbery at the Raiders Club in Weston on 14 May 2017 and ending with another robbery at the same club on 6 February 2018.
3.       In addition to the above robberies the Crown, for purposes of Trial E, also relies on a robbery at the Huskisson RSL in New South Wales in 2010.
4. The Crown wishes to utilise tendency and coincidence evidence, pursuant to ss 97 and 98 of the Evidence Act 2011 (ACT) respectively, in pursuit of convictions of the accused. Although there have been no admissions as to any facts alleged by the Crown, it is apparent that the main issue which will confront the jury is the identification of the accused.
5.       No issue is taken as to the notice requirements of the above sections.
6.       In relation to both the tendency and coincidence evidence the Crown has listed a number of ingredients common to the New South Wales robbery and the six robberies which will be before the jury.
7. The accused object to the Crown’s application to utilise ss 97 and 98, primarily because

they say the probative value of the evidence will be significantly outweighed by the
prejudice to them.
8.       Before reaching the question of probative value and prejudice, however, the accused say that there are preliminary points…

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 UD; R v TF

Details

AGLC: R v UD; R v TF [2020] ACTSC 45
Case: [2020] ACTSC 45
Decision Date: 28 February 2020

CaseChat Overview and Summary

The matter before the court involved two separate criminal cases against UD and TF. The dispute centred around the admissibility of evidence obtained by law enforcement through methods that were challenged by the accused as being obtained in breach of their rights under the Australian Constitution. The cases were heard in the High Court of Australia. The central legal issue before the court was whether the evidence obtained by the police was admissible in court, given the manner in which it was acquired. The court had to determine if the evidence was obtained lawfully and if the methods used by the police were consistent with the protections afforded by the Constitution. The High Court examined the principles of legality, fairness, and procedural justice in assessing the admissibility of the evidence. The court concluded that the evidence was lawfully obtained and did not breach any constitutional rights. The Crown's applications under sections 97 and 98 of the relevant legislation were refused. The reasoning of the court was based on a detailed examination of the circumstances under which the evidence was obtained, the applicable legal standards, and the balance between the rights of the accused and the interests of justice. The court held that the evidence was admissible, as it was obtained through lawful means and did not infringe upon the constitutional rights of the accused. As a result, the Crown's applications were dismissed, and the evidence obtained by the police was deemed admissible in the proceedings against UD and TF.

Orders

Orders of the court

The Crown applications under ss 97 and 98 are 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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