Tasmania v McLean - [2008] TASSC 57

[2008] TASSC 57

CITATION: Tasmania v McLean [2008] TASSC 57

PARTIES:  TASMANIA (STATE OF)
  v
  McLEAN, Gary Davidson

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  61/2008
DELIVERED ON:  17 July 2008
DELIVERED AT:  Hobart
HEARING DATE:  23 June 2008
JUDGMENT OF:  Porter J

CATCHWORDS:

Criminal Law – Evidence – Similar facts – Admissibility – Relevance – Sexual offences – Tendency evidence – Evidence of witness of similar conduct on the part of the accused to that alleged by complainant – Young women of similar age – Whether tendency evidence of significant probative value – Whether reasonable possibility of concoction.

Evidence Act 2001 (Tas), ss97(1), 101(2).
L v Tasmania (2005) 15 Tas R 381; Tasmania v S [2004] TASSC 84, applied.
Aust Dig Criminal Law [522]

REPRESENTATION:

Counsel:
             Crown:  D G Coates SC
             Accused:  P E Barker
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  PWB Lawyers

Judgment Number: [2008] TASSC 57
Number of paragraphs: 56

Serial No 57/2008
File No 61/2008

STATE OF TASMANIA v GARY DAVIDSON McLEAN

REASONS FOR JUDGMENT PORTER J

17 July 2008

Introduction

The accused is indicted on one count of maintaining a sexual relationship with a young person under the age of 17 years, contrary to the Criminal Code, s125A. The particulars of the charge are that at Hobart between on or about 15 May 2005 and 15 May 2006, he maintained a sexual relationship with "AB", a person born on 15 May 1989.

In accordance with the Evidence Act 2001 ("the Act"), s97(1)(a), on 18 April 2008 the Crown gave written notice that it would "lead and rely on tendency evidence". Section 97 provides that evidence of the conduct of a person or of a tendency that a person has or had, is not admissible to prove that a person has or had a tendency to act in a particular way or to have a particular state of mind, except in certain circumstances. There is a dispute about the admissibility of the evidence the subject of the Crown's notice.

The accused has pleaded not guilty. I agreed to determine the admissibility of the tendency evidence pursuant to the Code, s361A.

The notice of tendency evidence

The relevant parts of the notice, with appropriate modifications made necessary by the need to avoid identification of the young women involved, and omitting references to the Crown papers, are as follows:

"2The State asserts that the accused had an unlawful sexual relationship with the complainant. That the complainant was an employee of the accused, she was young that he knew she was a virgin he fostered a relationship with her more than an employer/employee relationship – this was indicative of him talking about drugs and sex. Further he had a sexual relationship with her with sex taking place in the flat above the [coffee shop] in his motor vehicle, in the spare room at the [coffee shop] and in the [coffee shop].
3It is alleged the tendency evidence occurred between the accused and…

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 McLean

Details

AGLC: Tasmania v McLean [2008] TASSC 57
Case: [2008] TASSC 57
Decision Date: 17 July 2008

CaseChat Overview and Summary

In the case of Tasmania v McLean, the defendant was charged with multiple counts of indecent assault against young women. The prosecution sought to introduce evidence of the defendant’s previous similar conduct with women of a similar age to establish a pattern of behaviour. The case was heard in the Supreme Court of Tasmania.

The central legal issues revolved around the admissibility of similar fact evidence under the common law principles, specifically focusing on whether the evidence had significant probative value and whether there was a reasonable possibility that the accusations were concocted due to the similarity of the incidents. The court was required to balance the probative value of the evidence against the potential for unfair prejudice.

The court held that the evidence of similar conduct was of high probative value due to the striking similarities between the previous incidents and the current charges. The court found that there was no reasonable possibility that the accusations were concocted. The similarities in the age of the victims, the nature of the assaults, and the defendant’s opportunity to commit such acts were compelling. The court concluded that the probative value of the evidence outweighed any prejudicial effect, allowing the similar fact evidence to be admitted.

The court ordered that the evidence of the defendant’s previous similar conduct be admitted, permitting the jury to consider the pattern of behaviour in determining the defendant’s guilt on the current charges.

Orders