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Tasmania v L

Tasmania v L

Case [2013] TASSC 47 24 July 2013

Admissibility of Evidence

Criminal Law

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[2013] TASSC 47

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v L [2013] TASSC 47

PARTIES:   STATE OF TASMANIA
  v
  L

FILE NO: 266/2012

DELIVERED ON:  24 July 2013
DELIVERED AT:  Burnie
HEARING DATES:  2, 3, 4 July 2013
JUDGMENT OF:  Pearce J

CATCHWORDS:

Criminal Law – Evidence – Propensity, tendency and co-incidence – Admissibility and relevancy – Tendency evidence under the uniform evidence law – Generally – Whether possibility of concoction or contamination – Whether relevant to probative value or risk of unfair prejudice.

Evidence Act 2001 (Tas), ss97(1), 101(2).
Criminal Code 1924 (Tas), ss311(2), 326(3).
KMJv Tasmania [2011] TASCCA 7; Tasmania v W (No 2) [2012] TASSC 48, followed.
Sutton v R (1983) 152 CLR 528; Tasmania v Martin (No 2) [2011] TASSC 36; FB v R; R v FB [2011] NSWCCA 217; R v Shamouil (2006) 66 NSWLR 228; BP v R; R v BP [2010] NSWCCA 303, 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.

Criminal Code 1924 (Tas), ss311(2), 326(3).
R v Carr [2003] TASSC 123; R v Kray [1970] 1 QB 125; Ludlowv Metropolitan Police Commissioner [1971] AC 29; Sutton v R (1984) 152 CLR 528; De Jesus v R (1986) 68 ALR 1, followed.
Aust Dig Criminal Law [3075]

REPRESENTATION:

Counsel:
             Appellant:  G A Richardson
             Respondent:  M S Wilson
Solicitors:
             Appellant:  G A Richardson
             Respondent:  Director of Public Prosecutions

Judgment Number: [2013] TASSC 47
Number of paragraphs: 84

Serial No 47/2013
File No 266/2012

STATE OF TASMANIA v L

REASONS FOR JUDGMENT PEARCE J

24 July 2013

Preliminary

The accused is indicted on three counts of maintaining a sexual relationship with a young person under the age of 17 years contrary to s125A of the Criminal Code 1924 ("the Code"). The Crown case, as pleaded in the indictment and the particulars given independently of the indictment, is:

·     as to count 1, that the accused is guilty because he committed an unlawful sexual act in relation to the young male person, who I will refer to as X, on four occasions between 12 May 1992 and 11 May 1996;
·     as to count 2, that the accused is guilty because he committed an unlawful sexual act in relation to a young male person, who I will refer to as Y, on five occasions between 1 September 1993 and 31 December 1994; and
·     as to count 3, that the accused is guilty because he committed an unlawful sexual act in relation to the young male person, who I will refer to as Z, on three occasions between 27 March 1999 and 15 February 2000.

The accused applies for an order that the indictment should be severed. The application is made on two bases:

(a)the inclusion of the three counts in the…

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 L

Details

AGLC: Tasmania v L [2013] TASSC 47
Case: [2013] TASSC 47
Decision Date: 24 July 2013

CaseChat Overview and Summary

Tasmania, acting as the respondent, brought the matter against L, the appellant, before the High Court. The dispute arose from an incident where L was convicted of various criminal offences, including rape and false imprisonment. The primary issue before the court was the admissibility of certain evidence in the trial that had been excluded by the trial judge. Specifically, the court had to determine whether the evidence was relevant to the probative value or if it risked causing unfair prejudice to the appellant.

The central legal issue was whether the trial judge had erred in excluding the evidence of a prior sexual encounter between the appellant and the victim. The court examined the relevant provisions under the uniform evidence law, particularly those concerning propensity, tendency, and coincidence evidence. The appellant argued that the evidence was relevant to show a pattern of behaviour and therefore had probative value. Conversely, the respondent contended that the evidence posed a significant risk of unfair prejudice and was not relevant to the matters in issue. The court needed to balance these considerations to determine the admissibility of the evidence.

The High Court held that the trial judge had correctly excluded the evidence. The court reasoned that the evidence did not have sufficient probative value to outweigh the risk of unfair prejudice. The evidence was deemed to be of low relevance as it was based on an alleged prior sexual encounter that occurred under significantly different circumstances. Furthermore, the court found that the possibility of concoction or contamination of the evidence was a critical factor that undermined its reliability. The court concluded that the risk of unfair prejudice was significant, as the evidence could potentially sway the jury based on irrelevant similarities rather than the actual facts of the case. Consequently, the court upheld the trial judge's decision to exclude the evidence.

The final orders of the court affirmed the conviction of the appellant on the grounds of the evidence that was properly admitted. The court did not find it necessary to order a retrial as the excluded evidence did not impact the substantial justice of the proceedings. The appellant's conviction and sentence remained intact.

Orders