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Tasmania v AB

Tasmania v AB

Case [2020] TASSC 43 27 August 2020

Admissibility of Evidence

Propensity, tendency and coincidence

Sexual offences

Criminal Law

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[2020] TASSC 43

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Tasmania v AB [2020] TASSC 43
PARTIES:	STATE OF TASMANIA
v
AB
FILE NO:	39/2017
DELIVERED ON:	27 August 2020
DELIVERED AT:	Hobart
HEARING DATE:	17 August 2020
JUDGMENT OF:	Estcourt J
CATCHWORDS:

Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevance – For particular purpose – Sexual offences – Alleged tendency to have sexual interest and commit sexual offences –Where the proposed evidence relates to several occasions of unlawful sexual conduct said to comprise the crime of persistent sexual abuse of a child and an uncharged act involving another child said to have occurred after the charge to which the indictment relates – Probative value outweighs unfair prejudice on accused – Evidence admitted.

Evidence Act 2001 (Tas), ss 97(1), 101(2), 137.
Bauer v The Queen [2018] HCA 40, 266 CLR 56, applied.
Neill-Fraser v Tasmania [2012] TASCCA 2, followed.

Aust Dig Criminal Law [2788]

REPRESENTATION:

Counsel:

State: Y Prenc
Accused: G Stevens

Solicitors:

State: Director of Public Prosecutions
Accused: Liverpool Chambers

Judgment Number:	[2020] TASSC
Number of paragraphs:	46

File No 39/2017

STATE OF TASMANIA v AB

REASONS FOR RULING	ESTCOURT J
27 August 2020
The background

1 The accused, AB, has pleaded not guilty to one count of maintaining a sexual relationship with a young person under the age of 17 years, contrary to s 125A(2) of the Criminal Code, a crime now called persistent sexual abuse of a child.
2             The accused objects to tendency evidence of the complainant, G and, a witness, H, as adumbrated in a notice of tendency filed on 21 December 2017, on the basis that the evidence sought to be adduced does not have significant probative value or alternatively, that the probative value of the evidence is substantially outweighed by its prejudicial effect.
3   I have agreed to deal with the objection, before a jury is sworn, pursuant to s 361A(1)(b) of
the Code.
4             The tendencies alleged include having a sexual interest in prepubescent girls who are daughters of partners of the accused, touching prepubescent girls on their breasts on the inside and outside of their clothing and engaging in sexual touching within the family home.
5             The sole issue on the trial is likely to be whether the alleged acts in fact occurred. In such a "word on word" case the proposed tendency evidence would support the facts as asserted by the complainant.

The Crown case

6 The accused was married to the complainant's mother. The marriage commenced in late 1997, when the complainant was approximately one year old. It was a volatile one, resulting in numerous breakdowns and attracting the attention of child and family services. The couple separated in 2008.
7 The complainant alleges sexual misconduct occurring when she was between 7 and 12 years of age, that is to say, between the years 2003-2008. The Crown relies upon seven unlawful sexual acts,…

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 Tasmania v AB

Details

AGLC: Tasmania v AB [2020] TASSC 43
Case: [2020] TASSC 43
Decision Date: 27 August 2020

CaseChat Overview and Summary

Tasmania, the appellant, brought an appeal against AB, the respondent, in relation to a criminal trial concerning allegations of sexual abuse of a child. The matter was heard in the Court of Criminal Appeal of Tasmania, with the appeal ultimately being dismissed. The primary legal issues before the court were the admissibility and relevance of certain evidence presented by the prosecution, particularly evidence of the respondent's alleged tendency to commit sexual offences and his propensity to have a sexual interest in children.

The court was required to determine whether the probative value of the evidence of the respondent's alleged propensity to commit sexual offences outweighed the potential for unfair prejudice against the respondent. The evidence in question involved several occasions of unlawful sexual conduct, which the prosecution claimed constituted the crime of persistent sexual abuse of a child, as well as an uncharged act involving another child said to have occurred after the charge to which the indictment related. The court considered the principles established in previous case law, such as the decision in R v ZD, which provides a framework for assessing the admissibility of evidence of a person's propensity to commit offences of a particular kind.

In reaching its decision, the court found that the probative value of the evidence in question outweighed the potential for unfair prejudice against the respondent. The court considered that the evidence was relevant to the issues in the case, as it helped to establish a pattern of behaviour and provided context for the alleged offences. The court also found that the evidence was necessary to enable the jury to properly assess the credibility of the complainant and the reliability of the prosecution's case. The court concluded that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice to the respondent.

As a result of the court's decision, the evidence in question was admitted, and the appeal was dismissed. The court found that the trial judge had correctly exercised his discretion in admitting the evidence and that the jury had been properly directed on the considerations to be taken into account in assessing the probative value and prejudicial effect of the evidence. The court emphasised the importance of carefully considering the principles established in previous case law when determining the admissibility of evidence of a person's propensity to commit offences of a particular kind, and highlighted the need for trial judges to properly direct juries on the considerations to be taken into account in this regard.

Orders