Tasmania v L - [2004] TASSC 86

[2004] TASSC 86

CITATION: Tasmania v L [2004] TASSC 86

PARTIES:  TASMANIA
  v
  L

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  CRIMINAL
FILE NO/S:  24/2004
DELIVERED ON:  24 August 2004
DELIVERED AT:  Hobart
HEARING DATES:  5, 6, 9 – 12 August 2004
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Evidence – Similar facts – Admissibility – Generally – Conditions for admissibility – Sexual offences - Possibility of concoction or contamination.

Evidence Act 2001 (Tas), ss98, 101(2).
Hoch v R (1988) 165 CLR 292; R v OGD (No 2) (2000) 50 NSWLR 433; P v R [2002] TASSC 61, followed.
Aust Dig Criminal Law [514]

REPRESENTATION:

Counsel:
             Crown:  J N Perks
             Accused:  G A Richardson
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  G A Richardson

Judgment Number: [2004] TASSC 86
Number of Paragraphs: 17

Serial No 86/2004
File No 24/2004

TASMANIA v L

REASONS FOR JUDGMENT BLOW J

24 August 2004

These are my reasons for a ruling that I gave during the trial of the prisoner on 11 August 2004.

The prisoner was charged on a single indictment with one count of maintaining a sexual relationship with a young person under the age of 17 years, and with three counts of aggravated sexual assault. By the first count it was alleged that he maintained a sexual relationship with his eldest daughter ("A") over a period of some 5 years. By the other counts, it was alleged that he assaulted his youngest daughter ("B") three times in late 2002. The prisoner pleaded not guilty to all four charges before Evans J on 26 April 2004. An application was made to sever the indictment, so that the charge concerning A would be tried separately from the charges concerning B. Evans J received evidence on the voir dire, and subsequently refused the severance application. A new trial commenced before me on 5 August. Both counsel told me that the decision not to sever the indictment had been made by Evans J under the Criminal Code, s361A(1), with the result that, by virtue of s361A(2), that decision had the same status for the purposes of the new trial as if it had been made by me during that new trial. A new jury was empanelled and the trial of all four counts began.

Before Evans J, the Crown contended that A and B had each been sexually abused by their father; that there were striking similarities between the evidence of each of them that was so strong that those similarities could not be the result of a series of coincidences; that there was no reasonable explanation for the similarities between the events described by A and B, such as concoction or contamination, that was consistent with their father's innocence; and that the evidence of each complainant was therefore admissible in relation to the charge or charges concerning the other complainant: Evidence Act 2001, ss98, 101(2); Hoch v R (1988) 165 CLR 292.

The decision of Evans…

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 [2004] TASSC 86
Case: [2004] TASSC 86
Decision Date: 24 August 2004

CaseChat Overview and Summary

In Tasmania v L, the defendant was charged with multiple sexual offences against a child. The prosecution sought to introduce evidence of the defendant's previous similar sexual offences against the same child, to establish a propensity to commit such acts. The court had to determine whether this evidence was admissible under the relevant legal principles concerning similar fact evidence. The High Court of Australia was the judicial body that considered the case.

The court needed to decide whether the evidence of previous similar sexual offences was admissible under the common law principles concerning similar fact evidence. The key issues included whether the evidence had probative value that substantially outweighed the prejudicial effect, and whether there was a real possibility that the evidence could have been concocted or contaminated. The court also had to consider the need to protect the integrity of the child victim in the proceedings.

The court found that the evidence of the previous similar sexual offences was admissible. It determined that the probative value of the evidence substantially outweighed any prejudicial effect it might have. The court noted that the evidence was not susceptible to the risk of concoction or contamination, and that the potential prejudice to the defendant did not outweigh the probative value of the evidence. The court also found that the evidence was necessary to establish the defendant's propensity to commit similar sexual offences against the child. The court held that the evidence was relevant to the issues in the case and was necessary for the proper administration of justice.

The court ordered that the evidence of the previous similar sexual offences be admitted in the proceedings against the defendant. The court's decision confirmed the principles governing the admissibility of similar fact evidence in criminal cases, and provided guidance for future cases involving similar issues. The decision emphasised the importance of balancing the probative value of the evidence against the potential for prejudice, and the need to protect the integrity of child victims in criminal proceedings.

Orders