R v Wolter - [2015] ACTSC 269

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Wolter
Citation:	[2015] ACTSC 269
Hearing Date:	28 August 2015
DecisionDate:	31 August 2015
Before:	Refshauge J
Decision:	1. Leave be given to admit the evidence of Brewster Ashley and Melinda Johnston as tendency evidence. 2. The evidence of the suspension of Mr Wolter's driver licence should be rejected and the interview should be appropriately edited.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Evidence – tendency and coincidence evidence – culpable driving causing death – pre-trial application – tendency of persons other than the accused – balancing probative value and prejudicial effect – application not opposed CRIMINAL LAW – Evidence – tendency and coincidence evidence – tendency of the accused – tendency to engage in risky behaviour – low probative value – potential prejudice
Legislation Cited:	Evidence Act 2011 (ACT), ss 97(1), 97(1)(a), 97(1)(b), 101(2), 137; Dictionary Road Transport General Act 1999 (ACT), s 44; Pt 3 Australian Road Rules (ACT), r 300 Road Transport (Offences) Regulation 2005 (ACT), Schedule 1 Pt 1.2 (Item 300)
Cases Cited:	BP v the Queen [2010] NSWCCA 303 BRS v R [1997] 191 CLR 275 McBride v the Queen (1966) 115 CLR 44 Parker v the Queen (1957) 41 Cr App R 134 R v Bacic (1994) 20 MVR 93 R v Bashir [1969] 3 All ER 692 R v Colby [1999] NSWCCA 261 R v Goodwin (2009) 233 FLR 473 R v Howe [1958] SASR 95; R v Lam [2014] ACTSC 49 R v Rowton (1865) Le & Ca 520; 169 ER 1497 R v Teys (2001) 161 FLR 44
Parties:	The Queen (Crown) Dylan Wolter (Accused)
Representation:	Counsel Mr T Hickey (Crown) Mr J Sabharwal (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number:	SCC 177 of 2014; SCC 178 of 2014

Refshauge J

On 16 August 2013 there was a collision on Mawson Drive, Mawson, in the Australian Capital Territory, between a black Mazda sedan and an elderly pedestrian, Natalie Ashley, who died at the scene of the collision.

As a result, the accused, Dylan Wolter, was charged with culpable driving causing death. He was committed for trial which is listed to commence on 31 August 2015.

The Crown has applied for leave under s 97(1) of the Evidence Act 2011 (ACT) to adduce certain evidence as tendency evidence. I granted the application and said I would give my reasons later. These are those reasons.

Tendency evidence

Tendency evidence is evidence of a person's conduct, character or reputation which shows that the person has a tendency to act in a particular way or to have a particular state of mind.

In the common law, there was a view that tendency evidence, often called propensity evidence, was confined to "criminal or reprehensible conduct". See BRS v R [1997] 191 CLR 275 at 299, 305 and R v Teys (2001) 161 FLR 44 at 55; [63]. The Evidence Act does not limit it in this way…

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 Wolter

Details

AGLC: R v Wolter [2015] ACTSC 269
Case: [2015] ACTSC 269
Decision Date: 31 August 2015

CaseChat Overview and Summary

The matter before the court involved a prosecution against the accused, Wolter, for culpable driving causing death. The court was required to determine the admissibility of certain evidence, specifically the evidence of Brewster Ashley and Melinda Johnston, who were not the accused, as well as the evidence of the suspension of Wolter's driver's licence and his subsequent interview. The application for the admission of this evidence was not opposed by the defence.

The legal issues that the court needed to address involved the admissibility of tendency and coincidence evidence under the provisions of the Evidence Act. The court had to consider whether the evidence of Brewster Ashley and Melinda Johnston had sufficient probative value to be admitted as tendency evidence, and whether such evidence would cause more prejudice than probative value. Additionally, the court needed to assess the admissibility of the evidence of the suspension of Wolter's driver's licence and his interview, and whether this evidence had a low probative value and the potential to cause prejudice.

The court determined that the evidence of Brewster Ashley and Melinda Johnston should be admitted as tendency evidence, as it had sufficient probative value and did not cause more prejudice than probative value. The court found that the evidence of the suspension of Wolter's driver's licence and his interview should be rejected and the interview should be appropriately edited, as it had a low probative value and the potential to cause prejudice. The court balanced the probative value and prejudicial effect of the evidence, and concluded that the probative value outweighed the prejudicial effect.

The final orders of the court were that leave be given to admit the evidence of Brewster Ashley and Melinda Johnston as tendency evidence, and that the evidence of the suspension of Wolter's driver's licence and his interview should be rejected and the interview should be appropriately edited.

Orders

Orders of the court

1. Leave be given to admit the evidence of Brewster Ashley and Melinda Johnston as tendency evidence.

2. The evidence of the suspension of Mr Wolter's driver licence should be rejected and the interview should be appropriately edited.

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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