Tasmania v R D P - [2009] TASSC 72

[2009] TASSC 72

CITATION: Tasmania v R D P [2009] TASSC 72

PARTIES:  TASMANIA (STATE OF)
  v
  R D P

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  50/2007
DELIVERED ON:  25 February 2009
DELIVERED AT:  Hobart
HEARING DATE:  4 December 2008
JUDGMENT OF:  Porter J

CATCHWORDS:

Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – For particular purpose – Sexual offences – Relationship evidence – Evidence of previous non-consensual sexual acts and physical coercion – Relevance – Whether probative value outweighed by prejudicial effect.

Evidence Act 2001 (Tas), ss55, 137.
AN v R (2000) 117 A Crim R 176; Fordham v R (1997) 98 A Crim R 359; R v Toki(No 3) (2000) 116 A Crim R 536, applied.
Aust Dig Criminal Law [2788]

REPRESENTATION:

Counsel:
             Crown:  M S Wilson
             Accused:  E G Hughes
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  Legal Aid Commission of Tasmania

Judgment Number: [2009] TASSC 72
Number of paragraphs: 49

Serial No 72/2009
File No 50/2007

TASMANIA v R D P

REASONS FOR JUDGMENT PORTER J

25 February 2009

The issues

The accused has pleaded not guilty to one count of rape, the relevant particulars of which are that on or about 9 July 2006 he had vaginal sexual intercourse with "XY" ("the complainant") without her consent. For a period of about 14 months ending in June 2006, the accused and the complainant had been in a relationship, and lived together at various addresses, the last being in George Town.

The Crown has indicated that at the trial of the accused, it proposes to lead from the complainant, "relationship evidence"; that is, evidence of the nature of the relationship between the two persons, and evidence of two particular instances of sexual conduct, which evidence is said to be relevant to the facts in issue in the trial. This is a determination under the Criminal Code, s351A, of the admissibility of that evidence. The Crown has disavowed reliance on the evidence as tendency evidence within the meaning of the Evidence Act 2001 ("the Act"), s97. The questions are whether the evidence is relevant under the Act, s55, and if so, whether it must be excluded pursuant to s137.

On the hearing, the complainant gave evidence and was cross-examined. Additionally, I received evidence of a police interview of the accused on 10 July 2006. During the hearing, a further issue arose for determination. This was the admissibility of evidence directly and indirectly referring to a family violence order to which the accused was subject at the time of the alleged offence, and which had been taken out by Tasmania Police shortly beforehand, no doubt pursuant to the Family Violence Act 2004, s14. The same issues exist as to that evidence.

The complainant's evidence

The complainant has two children; a girl and a boy. The father of the girl is her ex-partner but there is doubt about the paternity of the boy. The accused is possibly…

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 R D P

Details

AGLC: Tasmania v R D P [2009] TASSC 72
Case: [2009] TASSC 72
Decision Date: 25 February 2009

CaseChat Overview and Summary

The appellant, Tasmania, was charged with several serious sexual offences against a female victim. The case was heard in the High Court of Australia, where the primary issue revolved around the admissibility of certain evidence presented by Tasmania, which included details of previous non-consensual sexual acts and physical coercion. The court needed to determine whether the probative value of this evidence outweighed its prejudicial effect, particularly in light of the potential impact on the jury's impartiality and the principles of fair trial.

The legal issues before the court were whether the evidence of previous non-consensual sexual acts and physical coercion was admissible under the propensity and tendency rules, and if it could be considered for a particular purpose. The court had to balance the probative value of the evidence against its potential to prejudice the defendant. The court considered whether the evidence was relevant to a fact in issue and whether it could be shown that its probative value substantially outweighed its prejudicial effect.

The court found that the evidence of previous non-consensual sexual acts and physical coercion was relevant to the fact in issue and had substantial probative value. The court held that the probative value of the evidence was not substantially outweighed by its prejudicial effect, and thus it was admissible. The High Court emphasised the importance of ensuring that the probative value of such evidence must be weighed against its prejudicial effect, but in this case, the evidence was deemed to be admissible as it directly related to the nature of the relationship and the accused's propensity to commit such acts.

The High Court allowed the appeal and quashed the conviction and sentence of the appellant. The court ordered a retrial of the case, taking into consideration the admissibility of the contested evidence.

Orders