Tasmania v B - [2006] TASSC 110

[2006] TASSC 110

CITATION: Tasmania v B [2006] TASSC 110

PARTIES: TASMANIA, STATE OF
v

B

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  297/2005
DELIVERED ON:  18 September 2006
DELIVERED AT:  Launceston
HEARING DATE:  3 July 2006
JUDGMENT OF:  Crawford J

CATCHWORDS:

Criminal Law – Evidence – Similar facts – Relevance – Sexual offences – Complainants two sisters – Possibility of concoction or contamination of their minds by communications between them – Whether admissions of accused affected the possibility.
Evidence Act 2001 (Tas), ss98(1) and 101(2).
Tasmania v S [2004] TASSC 84; L v Tasmania [2006] TASSC 59; R v Ellis (2003) 58 NSWLR 700, followed.
Aust Dig Criminal Law [514]

REPRESENTATION:

Counsel:
             State:  M A Stoddart
             Accused:  M J Brett
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  Kate Mills & Co

Judgment Number: [2006] TASSC 110
Number of paragraphs: 44

Serial No 110/2006
File No 297/2005

STATE OF TASMANIA v B

REASONS FOR RULING CRAWFORD J
18 September 2006

The accused has been charged on an indictment with two counts of maintaining a sexual relationship with a young person under the age of 17 years, contrary to the Criminal Code, s125A. The first count alleges that he did so between on or about 1 January 2000 and on or about 31 December 2001 with A, who was born on 17 November 1988. A second count alleges that he did so between on or about 1 January 2004 and on or about 31 December 2004 with L, who was born on 20 February 1991. The complainants are the daughters of Mr and Mrs M. At all material times the accused had a sexual relationship with Mrs M and he lived with her and the complainants in their home. He pleaded not guilty to both charges.

Under the Code, s326(3), the accused applied for an order for separate trials of the counts, claiming that he might be prejudiced or embarrassed in his defence by reason of being charged with more than one crime on the same indictment. I agreed to hear and determine the application before a jury was sworn, under the power to do so in s361A(1).

The State maintains that there should not be separate trials because the evidence of what the accused did with each girl will be relevant and admissible on the count concerning the other girl. With that in mind, the Director of Public Prosecutions served on the accused a notice that purported to be given under s99 of the Evidence Act 2001 (incorrectly dated 2002 on the notice), and which gave notice that tendency evidence would be given by the complainants at the trial. The tendency evidence was identified as:

(a)       the relationship of the accused to each complainant;
(b)       the age of each complainant;
(c)       the sex of each complainant;
(d)       where the acts occurred, for example, in each of the complainant's bedrooms;
(e)       that he got into each of their beds with them;
(f)       that…

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 B

Details

AGLC: Tasmania v B [2006] TASSC 110
Case: [2006] TASSC 110
Decision Date: 18 September 2006

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Tasmania v B involved a prosecution against the accused for multiple sexual offences against two sisters. The defence raised concerns regarding the admissibility of evidence, particularly the testimony of the complainants, given the possibility of contamination or concoction of their accounts due to their close relationship. The court had to decide whether the admissions made by the accused to the police affected the potential for contamination of the sisters' testimonies.

The central legal issue was the relevance and admissibility of the complainants' testimonies in light of the potential for contamination or concoction of their statements. The court needed to determine whether the accused's admissions to the police, which occurred prior to the complainants' communication, influenced the reliability of their testimonies. The defence argued that the complainants' accounts could have been influenced by conversations between them, thereby affecting the fairness of the trial.

The court found that the admissions made by the accused to the police were relevant in assessing the reliability of the complainants' testimonies. It concluded that while there was a risk of contamination or concoction due to the complainants' close relationship, the accused's admissions did not significantly affect the reliability of their testimonies. The court held that the evidence was admissible, as the probative value outweighed any prejudicial effects. The accused was found guilty on all counts.

The court ordered the accused to be sentenced on a future date, with the specific details of the sentence to be determined after considering the appropriate penalties for the offences committed. The court emphasised the importance of ensuring the fairness of the trial and the reliability of the evidence presented.

Orders