Tasmania v Martin - [2010] TASSC 51

[2010] TASSC 51

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Martin [2010] TASSC 51

PARTIES:  TASMANIA, State of
  v
  MARTIN, Terence Lewis

FILE NO/S:  521/2009
DELIVERED ON:  11 November 2010
DELIVERED AT:  Hobart
HEARING DATE:  5 November 2010
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Criminal Law – Procedure – Prosecution – Other matters – Preliminary proceedings orders – Whether order should be made – Question arising whether evidence admissible – Desirability of non-publication of evidence before trial – Whether more convenient and desirable to hear evidence of witnesses on voir dire and not in preliminary proceedings before justices.

Aust Dig Criminal Law [3037]

REPRESENTATION:

Counsel:
           Crown:  D G Coates SC
           Accused:  P E Barker
Solicitors:
           Crown:  Director of Public Prosecutions
           Accused:  Dobson Mitchell & Allport

Judgment Number: [2010] TASSC 51
Number of paragraphs: 16

Serial No 51/2010
File No 521/2009

STATE OF TASMANIA v TERENCE LEWIS MARTIN

REASONS FOR JUDGMENT CRAWFORD CJ

11 November 2010

The accused was charged by complaint with having sexual intercourse with a person under the age of 17 years, contrary to the Criminal Code, s124. The crime is alleged to have occurred on 10 September 2009.

On 30 October 2009, an order was made by a magistrate's court committing him to this Court for trial.

The Crown case is that the complainant was 12 years of age. It is common ground that the accused engaged her services as a prostitute, after seeing them advertised in a newspaper. I understand it is also common ground that the advertisement stated she was 18 years old.

It is the accused's intention to rely at his trial on the defence in s124(2) that he believed on reasonable grounds she was of or above the age of 17 years. To be successful, such a defence must be established by him on the balance of probabilities.

The prosecution provided him with copies of statutory declarations made by 13 witnesses. All men, they stated that they engaged the services of the complainant, almost all of them in September 2009. In their declarations they indicated their belief that she was not under 17 years of age, most of them saying that they believed her to be 18 or older. Some gave more reasons than others for their belief.

The accused has applied for a preliminary proceedings order that will permit him to examine each of those witnesses in preliminary proceedings to gain a better understanding of their reasons for thinking that the complainant was 17 or older. His counsel submitted that at the trial the evidence of those witnesses will be admissible because it is relevant to the question whether he had reasonable grounds for believing she was 17 or older. His argument was that if many others believed she was of age, it is more probable than not he had reasonable grounds for his belief.

Insofar as the belief of the witnesses amounted to an opinion, the accused will rely on the Evidence Act 2001, s78, which contains an exception to…

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 Martin

Details

AGLC: Tasmania v Martin [2010] TASSC 51
Case: [2010] TASSC 51
Decision Date: 11 November 2010

CaseChat Overview and Summary

The matter between Tasmania and Martin involved criminal law and procedure. The dispute centred on a preliminary proceedings order in relation to a prosecution. The court had to determine whether an order should be made, particularly in light of questions regarding the admissibility of evidence. Additionally, there was a consideration of whether it was desirable to prevent the publication of evidence before the trial, and whether it would be more convenient and desirable to hear the evidence of witnesses on a voir dire rather than in preliminary proceedings before justices.

The court's task was to weigh the desirability of protecting the integrity of the trial process against the need for preliminary hearings to determine the admissibility of evidence. The legal issues required the court to consider the balance between the rights of the accused to a fair trial and the need for the prosecution to present its case. The court also had to assess whether the potential prejudice to the accused by pre-trial publicity warranted a non-publication order, and whether a voir dire would be more appropriate for resolving the admissibility issues.

In reaching its decision, the court considered the potential prejudice that might arise from the publication of evidence before the trial. The court recognised that the right to a fair trial is a fundamental principle in criminal proceedings, and that pre-trial publicity could potentially taint the jury pool or influence witnesses. However, the court also had to balance this against the need for the prosecution to present its evidence in a timely manner. The court concluded that a non-publication order was necessary to protect the integrity of the trial. Furthermore, the court found that a voir dire would be more appropriate for resolving the admissibility issues, as it would allow for a more detailed examination of the evidence without the risk of influencing the jury.

The court ordered that evidence should not be published before the trial, and that a voir dire should be held to determine the admissibility of the contested evidence. This decision was made to ensure the fairness of the trial process while still allowing the prosecution to present its case in a timely and effective manner.

Orders