Tasmania v B (No 2) - [2012] TASSC 39

[2012] TASSC 39

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v B (No 2) [2012] TASSC 39

PARTIES:  TASMANIA, State of
  v
  B

FILE NO/S:  233/2012
DELIVERED ON:  22 June 2012
DELIVERED AT:  Burnie
HEARING DATE:  21, 22 June 2012
JUDGMENT OF:  Blow J

CATCHWORDS:

Evidence – Admissibility and relevancy – Hearing – In general – Relevant principles – Exceptions to hearsay rule – Prior inconsistent statement – Previous representation by witness of admission by accused – Witness acknowledging making of representation but not its truth.

Evidence Act 2001 (Tas), s60(3).
Lee v R (1998) 195 CLR 594; R v AA (No 1) [2009] NSWSC 1414, distinguished.
Aust Dig Evidence [48]

REPRESENTATION:

Counsel:
             State:  K Brown
             Accused:  S Wright
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  Wright Gilmour

Judgment Number: [2012] TASSC 39
Number of paragraphs: 20

Serial No 39/2012
File No 233/2012

STATE OF TASMANIA v B

RULING DURING TRIAL BLOW J

(Edited version of oral ruling) 22 June 2012

The Crown has sought leave to question one of its witnesses as though cross-examining her pursuant to the Evidence Act 2001, s38(1), in relation to a prior inconsistent statement.

The accused has pleaded not guilty to a charge of armed robbery. The Crown has adduced uncontroversial evidence that a young man robbed the United service station in Burnie at about 1.50am on 19 March 2011 when armed with a knife. The only substantial issue in the trial is whether the accused was that young man. The Crown has adduced a quantity of circumstantial evidence. There is evidence that the accused was in Burnie on the night in question; that the knife was a knife that came from his home; that he, or someone he had spoken to, provided information as to where it had been abandoned when talking to the police on the afternoon of 19 March; and that the robber was a young man of similar height to the accused. There is also evidence that would suggest that the accused was drunk on that morning, and that the robber was drunk.

The accused's sister has given evidence that she had a conversation with him on the afternoon of 19 March when he said that he was drunk the night before, to such an extent that he did not remember whether or not he was the person who robbed the service station. That witness has given evidence on the voir dire that on the afternoon of 19 March, after speaking to the accused, she went to a police station, spoke on an intercom device to somebody who worked for Tasmania Police, and told that person that the accused had told her that he did the robbery. However, on the voir dire, she said that she now does not remember him saying that to her. The Crown wish to cross-examine the witness in front of the jury and to tender a disc with the recording of her conversation with the police employee, which she acknowledges to be…

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 (No 2)

Details

AGLC: Tasmania v B (No 2) [2012] TASSC 39
Case: [2012] TASSC 39
Decision Date: 22 June 2012

CaseChat Overview and Summary

The case of Tasmania v B (No 2) was heard in a Tasmanian court, with the defendant, B, being prosecuted for a serious criminal offence. The dispute primarily revolved around the admissibility of certain evidence presented by the prosecution, specifically a prior inconsistent statement allegedly made by the defendant and a previous representation by a witness of an admission by the defendant. The trial judge had to determine whether these statements could be admitted under the exceptions to the hearsay rule.

The legal issues before the court involved assessing whether the prior inconsistent statement and the witness's representation of an admission by the defendant were admissible as evidence. The court needed to decide if these statements fell under the hearsay exception rules and if the witness's acknowledgment of making the representation constituted a sufficient basis for admitting the evidence despite the witness not affirming the truth of the representation.

In reaching its decision, the court considered the principles surrounding the admissibility of hearsay evidence and the specific exceptions applicable to the case. The court found that the prior inconsistent statement was not admissible because the witness did not affirm the truth of the statement, and the representation by the witness of an admission by the defendant was also deemed inadmissible for similar reasons. The court concluded that the witness's acknowledgment of making the representation did not satisfy the necessary conditions for admitting the evidence under the exceptions to the hearsay rule.

As a result of the court's reasoning, the evidence in question was ruled inadmissible. The court emphasised that for such evidence to be admitted, the witness must not only acknowledge making the representation but also affirm its truth. Consequently, the prosecution's case was impacted, and the admissibility of these particular pieces of evidence was excluded from the trial.

Orders