Tasmania v Finnegan - [2011] TASSC 74

[2011] TASSC 74

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Finnegan [2011] TASSC 74

PARTIES:  STATE OF TASMANIA
  v
  FINNEGAN, Anthony Colin

FILE NO/S:  255/2011
DELIVERED ON:  7 December 2011
DELIVERED AT:  Burnie
HEARING DATE:  6, 7 December 2011
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Evidence – Propensity, tendency and co-incidence – Admissibility and relevancy – Propensity evidence – Effect of previous acquittal – Acts subject of prior charges on which accused acquitted – No evidence offered – Duplicitous charges.

Garrett v R (1977) 139 CLR 437; R v Storey (1978) 140 CLR 364; Rogers v R (1994) 181 CLR 251; R v Young [1998] 1 VR 402, followed.
R v VN (2006) 15 VR 113, distinguished.
Aust Dig Criminal Law [2776]

REPRESENTATION:

Counsel:
             Appellant:  J Shapiro
             Respondent:  T K Jago SC, K Edwards
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission

Judgment Number: [2011] TASSC 74
Number of paragraphs: 21

Serial No 74/2011
File No 255/2011

STATE OF TASMANIA v ANTHONY COLIN FINNEGAN

REASONS FOR DETERMINATION BLOW J

(Edited version of oral ruling during voir dire) 7 December 2011

I have come to the conclusion that the evidence that the Crown wishes to lead of the accused doing acts that fall within the description of the acts alleged in the three complaints Nos 52740/11, 52741/11 and 55130/10 from the Devonport Court of Petty Sessions is not admissible.

The accused has been charged on indictment with a count of wounding, alleging that at Devonport on or about 11 February 2011 he unlawfully wounded Natalie Marie Patrick by striking her to the face with a glass. He has pleaded not guilty to that charge. Ms Patrick was his partner. I have been asked to make a number of determinations as to the admissibility of evidence prior to the empanelment of the jury, in accordance with the Criminal Code, s361A.

The first issue that I have been asked to determine is whether the Crown may adduce, as relationship evidence and/or tendency evidence, evidence of the accused doing acts which were, or might have been, the subject of the three complaints that I have referred to. Each of those three complaints was dismissed as a result of a prosecutor telling a magistrate that he or she offered no evidence in relation to them. Counsel for the accused contends, rightly in my view, that leading any evidence of the acts that were the subject of the charges, or fell within the scope of the charges, is impermissible because the accused is entitled to the full benefit of the acquittals in relation to the charges in the complaints in the lower court.

There is a body of High Court authority that makes it quite clear that, when there is an acquittal in relation to a charge of a crime or offence, the defendant or accused person who has been acquitted is entitled to the full benefit of that acquittal in subsequent criminal proceedings and…

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 Finnegan

Details

AGLC: Tasmania v Finnegan [2011] TASSC 74
Case: [2011] TASSC 74
Decision Date: 7 December 2011

CaseChat Overview and Summary

In the Tasmanian Supreme Court, the State of Tasmania sued Finnegan, charging him with various offences including assault occasioning bodily harm, deprivation of liberty, and unlawful possession of a knife. The case revolved around the admissibility of propensity evidence, specifically regarding previous charges against Finnegan that resulted in acquittals. Finnegan argued that the prior charges, which were not subject to evidence in the current trial, should not be considered due to their duplicitous nature and the fact that they led to acquittals. The court had to determine whether the prior charges could be admitted as evidence to demonstrate a propensity, tendency, or coincidence of the accused's actions.

The primary legal issues were whether the previous charges, despite resulting in acquittals, could be used as propensity evidence and if the charges were duplicitous. The court had to assess the relevance and admissibility of the prior charges under the Evidence Act, considering the principles of propensity, tendency, and coincidence. Furthermore, the court needed to decide if the nature of the prior charges, which were not subject to evidence in the current trial, affected their admissibility.

The court found that the previous charges were not admissible as propensity evidence since they were not subject to evidence in the current trial and there was no evidence offered regarding them. The court held that since the prior charges had resulted in acquittals and were not relevant to the current charges, they could not be used to show a propensity, tendency, or coincidence. The court also noted that the charges were duplicitous, meaning they contained multiple offences in a single count, which further undermined their admissibility. Consequently, the court ruled in favour of Finnegan, excluding the propensity evidence from the trial.

The court ordered that the evidence of the previous charges be excluded from the trial and instructed the prosecution to focus on the current charges against Finnegan. The court emphasised that the previous acquittals should not prejudice Finnegan's right to a fair trial and that evidence of prior charges must strictly adhere to the provisions of the Evidence Act. The court's decision underscored the importance of ensuring that propensity evidence is relevant, reliable, and does not unfairly prejudice the accused.

Orders