Tasmania v Dolega - [2016] TASSC 65

[2016] TASSC 65

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Dolega [2016] TASSC 65

PARTIES:  STATE OF TASMANIA
  v
  DOLEGA, Bianca Jane

FILE NO:  69/2015
DELIVERED ON:  23 November 2016
DELIVERED AT:  Burnie
HEARING DATES:  21-23 November 2016
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Evidence – Hearsay – Particular matters – Maker of statement not available.
Evidence Act 2001 (Tas), s 3B(1)(f).
Aust Dig Criminal Law [2802]

Evidence – Admissibility – Hearsay – Exceptions: first-hand hearsay – Whether representation made in circumstances that make it unlikely that the representation is a fabrication.

Sio v The Queen [2016] HCA 32; R v Ambrosoli [2002] NSWCCA 386, 55 NSWLR 603, followed.
Evidence Act 2001 (Tas), s 65(2)(b).
Aust Dig Criminal Law [1127]

Criminal Law – Evidence – Miscellaneous matters – Statutory provisions relating to evidence of children.
Evidence (Children and Special Witnesses) Act2001 (Tas), s 5.
Aust Dig Criminal Law [2956]

REPRESENTATION:

Counsel:
             State:  J Shapiro
             Accused:  G A Richardson
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  Greg Richardson

Judgment Number: [2016] TASSC 65
Number of paragraphs: 62

Serial No 65/2016
File No 69/2015

STATE OF TASMANIA v BIANCA JANE DOLEGA

REASONS FOR RULING BRETT J

23 November 2016

The accused was charged on indictment with one count of committing an unlawful act intended to cause bodily harm and one count of assault.
After the jury was empanelled, I heard legal argument as to the admissibility of various pieces of evidence comprising the prosecution case. As part of that argument, I heard evidence on the voir dire. I was also referred to the prosecution papers. At the conclusion of the argument, I gave a ruling with brief oral reasons, and indicated that I would give more detailed reasons at a later time. The trial concluded shortly thereafter on the basis of a directed acquittal in respect of the charge of committing an unlawful act intended to cause bodily harm (after the prosecution failed to present any evidence with respect to that count), and a plea of guilty to the charge of assault (after leave was given to withdraw the plea of not guilty to that charge).
These are my detailed reasons for that ruling.

The prosecution case

The charges arose out of events which occurred during the early morning of 3 February 2015. The accused, a 37 year old woman, lived in a house in Sheffield with her partner, to whom I will refer as the complainant. For the sake of anonymity and ease of reference, I will refer to each of the other participants by their first name, and in the case of a child, by the initial S. Also living in the house at the time of the relevant events was the complainant's 23-year old son, Jake, Jake's partner, Jessica, and S, the 14-year old daughter of the accused and the complainant.
The relevant events occurred, as best as can be determined on the evidence…

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 Dolega

Details

AGLC: Tasmania v Dolega [2016] TASSC 65
Case: [2016] TASSC 65
Decision Date: 23 November 2016

CaseChat Overview and Summary

In Tasmania v Dolega, the respondent faced charges for the sexual assault of a child, which involved a claim by the complainant that the accused had threatened to kill her if she disclosed the incident. The case was heard in the Court of Appeal of Tasmania, where the appellant challenged the admissibility of certain hearsay evidence used in the conviction. The crux of the appeal was whether the hearsay evidence was admissible under the exceptions provided in the law, specifically the first-hand hearsay exception, and whether it was made under circumstances that made it unlikely to be a fabrication.

The court was tasked with determining whether the hearsay exception for first-hand statements applied, given that the maker of the statement was unavailable. The court considered whether the representation was made in circumstances that suggested it was unlikely to be fabricated. Additionally, the court examined the statutory provisions concerning the evidence of children to ascertain if they influenced the admissibility of the hearsay evidence. The appellant argued that the evidence was inadmissible as it did not meet the criteria for the first-hand hearsay exception and that the evidence of the child was improperly admitted.

The court held that the hearsay evidence was admissible under the first-hand hearsay exception as it was made in circumstances that suggested it was unlikely to be fabricated. The court found that the representation was made in a manner that indicated reliability, thus satisfying the criteria for admissibility. Furthermore, the statutory provisions concerning children's evidence were considered, and the court determined that they did not preclude the admissibility of the hearsay evidence. Consequently, the appeal was dismissed, and the conviction was upheld. The court confirmed that the evidence was properly admitted and that the conviction was based on sufficient and reliable evidence.

Orders