Tasmania v Harris

Case [2016] TASSC 47

[2016] TASSC 47

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Tasmania v Harris [2016] TASSC 47

PARTIES:  STATE OF TASMANIA
  v
  HARRIS, Christopher James

FILE NO:  212/2015
DELIVERED ON:  7 September 2016
DELIVERED AT:  Burnie
HEARING DATE:  6 September 2016
RULING OF:  Estcourt J

CATCHWORDS:

Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – Tendency and coincidence evidence under the uniform evidence law – Generally – Significant probative value – Unfair prejudice – Approach to be followed – Mere possibility of concoction or contamination – Point at which considered – Relevance to unfair prejudice where no similarity of allegations – Reliance on jurors to comply with directions – Coincidence not unfairly prejudicial.

Evidence Act 2001 (Tas), ss 101(2), 135(a), 137.
R v Gale; R v Duckworth [2012] NSWCCA 174; IMM v The Queen [2016] HCA 14, 90 ALJR 529; R v Matonwal [2016] NSWCCA 174, applied.
Neill-Fraser v Tasmania [2012] TASCCA 2; Tasmania v L [2013] TASSC 47; Gilbert v The Queen [2000] HCA 15, 201 CLR 414; FB v The Queen [2011] NSWCCA 217, referred to.
Aust Dig Criminal Law [2780]

Criminal Law – Procedure – Information, indictment or presentment – Joinder  of counts – By statute – Same facts or series of offences of same or similar character – Cross admissibility – Application to sever refused.

Criminal Code 1924 (Tas), ss 311(2), 326(3).
Ludlow v Metropolitan Police Commissioner [1971] AC 29; De Jesus v The Queen (1986) 68 ALR 1; Andrews v The Queen (1986) 22 A Crim R 201; R v Iongi (1993) 69 A Crim R 441; R v Cogley [1999] VSCA 123; Tasmania v Martin (No 2) [2011] TASSC 36, 20 Tas R 445, referred to.
Aust Dig Criminal Law [3075]

REPRESENTATION:

Counsel:
             State:  J Ransom
             Accused:  K Edwards
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  Legal Aid Commission of Tasmania

Judgment Number:  [2016] TASSC 47
Number of paragraphs:  53

Serial No 47/2016
File No 212/2015

STATE OF TASMANIA v CHRISTOPHER JAMES HARRIS

EDITED REASONS FOR RULING  ESTCOURT J

7 September 2016

The application

  1. The accused, Christopher James Harris, stands charged on indictment of seven counts of assault.

  2. He has applied pursuant to the Criminal Code (the Code), s 326(3), for the severance of that indictment on the ground that the Court should exercise its discretion to do so because, in the words of the section, the accused "may be prejudiced or embarrassed in his defence by reason of being charged with more than one crime on the same indictment".

  3. The accused's counsel, Ms Edwards, also argues that the inclusion of seven counts on the indictment contravenes the Code, s 311(2), as they are not "a series of crimes of the same or a similar character".

The law as to severance

  1. Section 311(2) of the Code states there can only be one count in an indictment unless "those charges arise…

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Tasmania v Harris [2016] TASSC 47
Case
[2016] TASSC 47
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CaseChat Overview and Summary

In the case of Tasmania v Harris, the defendant was charged with multiple offences, including assault occasioning bodily harm, deprivation of liberty, and false imprisonment. The trial took place in the Supreme Court of Tasmania. The central legal issue was whether certain evidence, which the prosecution intended to use as coincidence evidence, should be admitted under the uniform evidence law. Specifically, the court needed to determine whether the probative value of this evidence substantially outweighed any prejudicial effect it might have on the accused.

The court held that the evidence in question was admissible as it had significant probative value. The court considered the evidence as a whole, rather than examining each individual circumstance separately. The test for admissibility involved weighing the probative value of the evidence against the potential for unfair prejudice. The court found that the probative value of the evidence was substantial, as it was influential in establishing the facts in issue. The court also noted that the evidence, when considered in its highest possible use by a jury, could rationally affect the assessment of the probability of the existence of the facts in issue. Therefore, the probative value of the evidence outweighed the potential for unfair prejudice, and the evidence was deemed admissible.

The court rejected the argument that the evidence should be excluded because of the risk of unfair prejudice to the accused. The court emphasised that the risk of prejudice alone was not sufficient to exclude the evidence. Instead, the court relied on the jury's ability to follow directions and to weigh the evidence appropriately. The court also noted that the mere possibility of concoction or contamination did not render the evidence inadmissible. The court found that the evidence did not unfairly prejudice the accused because there was no similarity between the allegations. Consequently, the court ruled that the evidence was admissible, and the trial proceeded without severance of the indictment.

The final orders of the court were that the evidence sought to be relied upon by the prosecution as coincidence evidence was admissible. The indictment was not severed, and the trial proceeded with all charges against the defendant. The court's decision was based on the significant probative value of the evidence and the conclusion that this value substantially outweighed any prejudicial effect on the accused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Relevantly that section provides as follows:"101 Further restrictions on tendency evidence and coincidence evidence adduced by the prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." It is necessary to give consideration to evidence sought to be tendered as coincidence evidence as a whole, rather than giving separate consideration to each particular circumstance relied upon; R v Matonwal [2016] NSWCCA 174 (17 August 2016), per Bathurst CJ [73], Rothman J [94] and McCallum J [95]. The task in determining whether to admit evidence as coincidence evidence is to be performed having regard to all of the evidence sought to be adduced by the party seeking to tender the evidence; Matonwal per Bathurst CJ [71], Rothman J [9] and McCallum J [95]. "Significant probative value" in s 98(1) of the Act means probative value which is "important" or "of consequence". The significance of the probative value must depend on the nature of the fact in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. In other words, the evidence must be influential in the context of fact finding; IMM v The Queen [2016] HCA 14, 90 ALJR 529 per French CJ, Kiefel, Bell and Keane JJ [46] and Matonwal (above) per Bathurst CJ at [77]-[78], Rothman J [94] and McCallum J [95]. The assessment of "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" requires that the possible use to which the evidence might be put, that is to say, how it might be used by a jury, must be taken at its highest; IMM v The Queen (above), per French CJ, Kiefel, Bell and Keane JJ [44]. The requisite probative value of the evidence is not spelled out in s 137 of the Act. It requires the "probative value" of the evidence to be weighed against the danger of unfair prejudice to the defendant. This also requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue; IMM v The Queen (above), per French CJ, Kiefel, Bell and Keane JJ [47]. Counsel for the accused submitted that the evidence sought to be relied upon by the State as coincidence evidence did not have significant probative value, and that if it did, any such value was outweighed by its prejudicial effect on the accused, and that therefore by virtue of ss 101(2), 135 and 137 of the Act it should not be allowed to be adduced as part of the State's case. The corollary of that argument is that in the event I so find, s 326(3) of the Act requires the indictment to be severed because the accused would be embarrassed or prejudiced in his defence by reason of there being seven crimes on the same indictment.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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