[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
The accused, Christopher James Harris, stands charged on indictment of seven counts of assault.
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".
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
Section 311(2) of the Code states there can only be one count in an indictment unless "those charges arise…
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CaseChat Overview and Summary
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.
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