Tasmania v Clark - [2005] TASSC 123

[2005] TASSC 123

CITATION: Tasmania v Clark [2005] TASSC 123

PARTIES:  TASMANIA
  v
  CLARK, Jonathon Wayne

TONNER, Joseph Andrew
MITCHELL, Michaela Suzanne

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  348/2005
DELIVERED ON:  21 November 2005
DELIVERED AT:  Hobart
HEARING DATE:  15 November 2005
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Prejudicial evidence – Particular cases – Photographic identification evidence – Probative value of evidence versus prejudicial effect – Failure to offer identification parade – Police photograph of accused who admitted being present.

Evidence Act 2001 (Tas), s137.
Pitkin v R (1995) 69 ALJR 612, distinguished.
R v Carusi (1997) 92 A Crim R 52, referred to.
Aust Dig Criminal Law [422]

REPRESENTATION:

Counsel:
             State:  A R Jacobs and V Tomlinson
             Clark:  R Mainwaring
             Tonner  K Baumeler
             Mitchell  P E Barker
Solicitors:
             State:  Director of Public Prosecutions
             Clark:  Legal Aid Commission of Tasmania
             Tonner  Butler McIntyre & Butler
             Mitchell  PWB Lawyers

Judgment Number: [2005] TASSC 123
Number of paragraphs: 31

Serial No 123/2005
File No 348/2005

STATE OF TASMANIA v JONATHON WAYNE CLARK,
JOSEPH ANDREW TONNER and MICHAELA SUZANNE MITCHELL

REASONS FOR DETERMINATIONS BLOW J

21 November 2005

The accused have pleaded not guilty to seven counts of assault and one count of wounding. Each count relates to only one or two accused. Before the empanelment of the jury, I was asked to exclude evidence of the identification of all three accused from police photographs, to exclude the evidence of witnesses named Parsey and Quilliam-Kennedy, and to sever count 5 from the other charges on the indictment. I decided to refuse all those applications, except that I decided that the evidence relating to police photographs of the accused Mitchell was not to be admitted against her. I did not hold that that evidence was not to be admitted against the other accused. These are my reasons for my determinations.

The eight charges relate to incidents that are alleged to have occurred in the vicinity of Salamanca Place and Montpelier Retreat in the early hours of Sunday 10 April 2005. Counts 1 – 4 relate to a series of assaults which are said to have occurred in Montpelier Retreat at about 1.45am. By those four counts, the accused Clark and Tonner are charged with assaulting men named Hoppitt, Barber, Cannamela and McMahon respectively. Counts 5 and 6 relate to an incident said to have occurred near the intersection of Hampden Road and Sandy Bay Road, Battery Point, at about 2.15am. By count 5, the accused Mitchell is charged with assaulting an unidentified young woman by punching her about the head. By count 6, the accused Tonner is charged with assaulting an unidentified young man by punching him about the head. Counts 7 and 8 relate to an incident alleged to have occurred near the Tasman monument between Salamanca Place and Parliament House at about 2.25am. By count 7, Miss Mitchell is charged with assaulting a Mr…

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 Clark

Details

AGLC: Tasmania v Clark [2005] TASSC 123
Case: [2005] TASSC 123
Decision Date: 21 November 2005

CaseChat Overview and Summary

Tasmania brought this case against Clark, raising issues of criminal law and evidence, which was heard in the Supreme Court of Tasmania. The primary dispute centred on the admissibility of photographic identification evidence presented by the prosecution. The court was tasked with determining whether the probative value of the photographic evidence outweighed its prejudicial effect, particularly given that an identification parade was not conducted, and the photograph was taken of the accused while they admitted to being present at the scene.

The legal issues that the court had to resolve were whether the exclusion of evidence, which included a police photograph of the accused who admitted being present at the scene, was warranted due to its prejudicial nature. The court had to consider the balance between the probative value of the evidence and any potential prejudice it might cause to the accused, given the circumstances of the case, including the failure to conduct an identification parade.

The court carefully considered the nature of the evidence and the circumstances under which it was obtained. It concluded that the prejudicial effect of the photographic evidence outweighed its probative value. The court found that the failure to conduct an identification parade, combined with the circumstances of the photograph's acquisition, made the evidence more prejudicial than probative. As such, the court exercised its judicial discretion to exclude the photograph from being presented to the jury. The court's decision was based on a thorough analysis of the balance between the probative value and the potential prejudicial impact of the evidence.

The court ordered the exclusion of the photographic evidence from the trial. This ruling was significant in shaping the parameters of the trial, ensuring that the evidence presented to the jury would not be unfairly prejudicial to the accused.

Orders