Tamara Hunt (a pseudonym)[1] v The Queen - [2017] VSCA 196

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0104

TAMARA HUNT (A PSEUDONYM)[1]	Applicant
V
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	WHELAN and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 July 2017
DATE OF JUDGMENT:	31 July 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 196
JUDGMENT APPEALED FROM:	DPP v [Hunt] (Ruling re coincidence evidence) (Unreported, County Court of Victoria, Judge Chettle, 26 April 2017)

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CRIMINAL LAW – Appeal – Application for leave to appeal against interlocutory ruling – Coincidence evidence – Applicant indicted on 36 charges of intentionally causing a bushfire – Whether reasonably open for trial judge to admit evidence – Whether coincidence evidence can be relied upon to prove applicant deliberately lit fires – Whether multiple charges can be heard together – Similarities of fires – ‘Significant probative value’ of evidence as a whole outweighs prejudicial effect – Leave refused – Evidence Act 2008 (Vic) ss 98, 101.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Gibson	Victoria Legal Aid
For the Crown	Mr C B Boyce QC	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA:

I have read in draft the reasons of Coghlan JA. I agree that leave to appeal should be refused for the reasons he gives.

COGHLAN JA:

This is an application for leave to appeal against an interlocutory ruling made in the County Court of Victoria sitting at Wodonga. The application is made pursuant to s 295(2) of the Criminal Procedure Act 2009. The learned trial judge has certified that the evidence, ‘if ruled inadmissible, would eliminate or substantially weaken the prosecution case.’

The proposed ground of appeal is:

1.That there was an error of law in admitting the coincidence evidence in that the evidence is not sufficiently probative and should be excluded. Therefore all charges except 32, 35 and 36 should be severed and stayed.

The Court of Appeal has made it clear that an applicant may only succeed on an application of this kind if it be shown that it was not reasonably open to the trial judge to arrive at the conclusion he did.[2] This application is to be considered accordingly.
[2]KJM v The Queen[No 2] (2011) 33 VR 11; DAO v The Queen (2011) 81 NSWLR 568; House v The King (1936) 55 CLR 499.

The circumstances of the alleged offending may be stated briefly.

Between 3 February 2014 and 9 May 2014 there were 31 fires in or near Tatura. Each of the fires was in grass on the edge of the road. With a few exceptions, the fires were in an area proximate to rural Tatura, Mooroopna and Ardmona. Then between 21 October 2014 and 2 January 2015 another five fires were lit.

Thirty-two of the fires were discovered and extinguished between 12:24 am…

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.

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Details

Case: [2017] VSCA 196
Decision Date: 31 July 2017

CaseChat Overview and Summary

The case of Tamara Hunt, referred to by a pseudonym, involves an appeal against an interlocutory ruling made during criminal proceedings. The applicant, Tamara Hunt, was indicted on 36 charges of intentionally causing bushfires. The issue at hand was whether it was reasonably open for the trial judge to admit certain evidence and to hear all the charges together. Specifically, the court was asked to determine if coincidence evidence could be relied upon to prove that the applicant deliberately lit the fires and if multiple charges could be heard together. The court had to weigh the significance of the evidence as a whole against its prejudicial effect.

The legal issues before the court involved the admissibility of coincidence evidence and the consolidation of multiple charges in a criminal trial. The central question was whether the similarities of the fires and the ‘significant probative value’ of the evidence as a whole outweighed the prejudicial effect. This involved interpreting sections 98 and 101 of the Evidence Act 2008 (Vic), which pertain to the admissibility of evidence and the consolidation of charges.

The court found that it was reasonably open for the trial judge to admit the evidence and to hear the charges together. The court reasoned that the coincidence evidence had significant probative value in proving the applicant's deliberate actions. The similarities of the fires were such that they pointed towards a common perpetrator, and the evidence as a whole was deemed to have a significant probative value that outweighed any prejudicial effect. Consequently, the court refused the applicant’s application for leave to appeal the interlocutory ruling.

The final orders of the court were that the application for leave to appeal against the interlocutory ruling was refused. The court upheld the trial judge's decision to admit the coincidence evidence and to hear all 36 charges together in the criminal trial. The court determined that the probative value of the evidence in proving the applicant's guilt was sufficiently strong to justify its admission, despite any potential prejudicial effect.

Orders