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Tasmania v S

Tasmania v S

Case [2004] TASSC 84 19 August 2004

Admissibility of Evidence

Relevance

Sexual Offences

Criminal Law

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[2004] TASSC 84

CITATION: Tasmania v S [2004] TASSC 84

PARTIES:  TASMANIA
  v
  S

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  CRIMINAL
FILE NO/S:  224/2004
DELIVERED ON:  19 August 2004
DELIVERED AT:  Hobart
HEARING DATES:  6, 9 August 2004
JUDGMENT OF:  Underwood J

CATCHWORDS:

Criminal law – Evidence – Similar facts – Relevance – Sexual offences – Relevance of the possibility of concoction to probative value under the Evidence Act 2001.
Evidence Act2001 (Tas), ss97(1), 98(1) and 101(2).

R v Pfennig (1995) 182 CLR 461, distinguished
R v Colby [1999] NSWCCA 261; R v OGD (No 2) (2000) 50 NSWLR 433; R v Mason (2003) 140 A Crim R 274, followed
Hoch v R (1988) 165 CLR 292, discussed.
Aust Dig Criminal Law [514]

Criminal law – Evidence – Evidentiary matters relating to witnesses and accused persons – Impeachment of credit and admissibility of evidence as to credit – Prior inconsistent statements – What is unfavourable evidence – Inability to recall first hand hearsay.

Evidence Act2001 (Tas), s38(1)(a).
Houston and Anor v R (1982) 8 A Crim R 392, followed.
Aust Dig Criminal Law [571]

REPRESENTATION:

Counsel:
             Crown:  D G Coates SC
             Accused:  J W Avery
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  Avery Partners

Judgment Number: [2004] TASSC 84
Number of Paragraphs: 40

Serial No 84/2004
File No 224/2004

TASMANIA v S

REASONS FOR JUDGMENT UNDERWOOD J

19 August 2004

The issue

The Crown has charged the accused with two counts of maintaining a sexual relationship. The charges are joined in a single indictment. Count 1 relates to complainant A. It alleges that the crime was committed between January 1972 and December 1978 when she was aged between 5 and 12 years. The crime is alleged to have been committed at Lauderdale and Hamilton. The evidence established that during the relevant period A was, firstly, a foster child of the accused and his wife, and subsequently an adopted child of the accused and his wife and that she lived with them at Lauderdale and Hamilton in Tasmania.

The second count relates to complainant B. The crime against B is alleged to have been committed between 1989 and December 1993 at Mornington and Bothwell when she was aged between 4 years and 8 years. A is now aged 37 and B will be 19 years old this month.

The Crown contended that the evidence on each count is admissible on the other count, either as tendency evidence or as coincidence evidence as provided by the Evidence Act 2001 ("the Act"), ss97(1) and 98(1). Mr Avery, counsel for the accused, contended that the evidence on each count is not admissible on the other count and consequently the indictment should be severed as is provided for by the Criminal Code, s326(3). It is well established that, absent good reason to the contrary, where an indictment alleges more than one sexual crime involving more than one complainant, the indictment should be severed 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 S

Details

AGLC: Tasmania v S [2004] TASSC 84
Case: [2004] TASSC 84
Decision Date: 19 August 2004

CaseChat Overview and Summary

The case involved Tasmania as the prosecutor and S as the accused. The dispute arose from multiple allegations of sexual offences. The matter was heard in the Supreme Court of Tasmania. The court was required to determine the admissibility of evidence related to similar fact incidents, considering the possibility of concoction, and its impact on the probative value of such evidence under the Evidence Act 2001.

The court needed to consider whether evidence of similar fact incidents could be admitted and, if so, how the possibility of concoction affected its probative value. The legal issue was whether the probative value of the evidence outweighed its prejudicial effect, particularly in light of the possibility that the incidents could have been concocted by the complainant. The court examined whether the evidence of similar fact incidents could be admitted to show propensity or common design and the extent to which the possibility of concoction impacted the probative value of that evidence.

The court concluded that evidence of similar fact incidents could be relevant to show propensity or common design, but the possibility of concoction needed to be considered when assessing the probative value of such evidence. The court found that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice. Therefore, the evidence was admissible. The court held that the possibility of concoction did not necessarily render the evidence inadmissible, but it did impact its weight. The court found that the evidence, when considered with other evidence, was sufficient to support the conviction.

The final orders included a conviction on certain charges, with the court emphasising the importance of considering the probative value of evidence in light of any potential issues, such as the possibility of concoction. The court ordered that the evidence of similar fact incidents be considered alongside other evidence, with appropriate weight given to its probative value.

Orders