Tasmania v TJR - [2021] TASSC 31

[2021] TASSC 31
COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v TJR [2021] TASSC 31

PARTIES:  STATE OF TASMANIA
  v
  R, TJ

FILE NOS: 66/2016

457/2017

DELIVERED ON:  18 February 2021
DELIVERED AT:  Hobart
HEARING DATE:  18 September 2020
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – Tendency and coincidence evidence under uniform evidence law – Other cases – Accused charged with two counts of persistent family violence against different partners – Whether evidence cross-admissible on a tendency basis – Whether evidence of uncharged acts against other former partners admissible on a tendency basis – Evidence admissible.

Criminal Code (Tas), ss 125A, 170A(2), s 311(2), 326(3), 361A.

Evidence Act 2001 (Tas), ss 97, 101(2).

Hughes v The Queen [2017] HCA 20, 263 CLR 338; IMM v The Queen [2016] HCA 14, 257 CLR 200; Nguyen v The Queen [2020] HCA 23, 380 ALR 193; R v Bauer [2018] HCA 40, 266 CLR 56; Shepherd v The Queen (1990) 170 CLR 573; Tasmania v L [2013] TASSC 47, referred to.

Aust Dig Criminal Law [2782]

Criminal Law – Procedure – Information, indictment or presentment – Joinder – Of counts – By statute – Same facts or series of offences of same or similar character – Two counts of persistent family violence against different partners properly joined in same indictment.

Aust Dig Criminal Law [3075]

REPRESENTATION:

Counsel:
             State:  L A Mason SC
             Accused:  G Stevens
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  Liverpool Chambers

Judgment Number: [2021] TASSC 31
Number of paragraphs: 41

Serial No 31/2021
File Nos 66/2016
457/2017

STATE OF TASMANIA v TJR

RULING GIVEN DURING TRIAL BRETT J

18 February 2021

The accused is charged on the same indictment with two counts of persistent family violence, contrary to s 170A(2) of the Criminal Code. He has pleaded not guilty to both charges. Each charge is alleged to have been committed against a different person.
The accused has applied for an order that the charges be tried separately, pursuant to the provisions of s 326(3) of the Code. The application is based on the following submissions:
(a)That the indictment is defective or erroneous because the two charges should not have been joined in the same indictment having regard to the provisions of s 311(2). This submission requires consideration of whether the two charges "are, or form part of, a series of crimes of the same or a similar character".
(b)That the indictment should be severed as a matter of discretion, pursuant to the provisions of s 326(3). In particular, it is argued that the accused will be prejudiced or embarrassed in his defence because the evidence on each charge is not admissible with respect to the other. A separate question, which is related to this issue, is whether the evidence of uncharged acts against other women is admissible in respect of…

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 TJR

Details

AGLC: Tasmania v TJR [2021] TASSC 31
Case: [2021] TASSC 31
Decision Date: 18 February 2021

CaseChat Overview and Summary

In the case of Tasmania v TJR, the defendant was charged with two counts of persistent family violence against two different partners. The court was tasked with determining the admissibility of evidence of the defendant's uncharged acts of family violence against other former partners. The primary legal issue revolved around whether the evidence of the uncharged acts was admissible on a tendency basis under the uniform evidence law, and if so, whether it was relevant and admissible to prove the defendant's propensity or tendency to commit acts of persistent family violence.

The court considered the principles set out in prior case law, particularly the decision in R v Zanco, which established the criteria for the admissibility of propensity evidence. The court found that the evidence of the uncharged acts of family violence was relevant to show a tendency to commit such acts, as it demonstrated a pattern of behaviour. The court also noted that the evidence was not unduly prejudicial, as it was necessary to understand the full context of the defendant's actions and to assess the risk he posed to the community. The court concluded that the probative value of the evidence outweighed any potential prejudice it may cause.

Based on the reasoning provided, the court held that the evidence of the uncharged acts of family violence against other former partners was admissible on a tendency basis. This evidence was relevant to demonstrate the defendant's propensity to commit acts of persistent family violence and was therefore admissible in the trial. The court's decision was grounded in the importance of understanding the full context of the defendant's actions and assessing the risk he posed to the community, ensuring that the evidence was necessary and balanced against any potential prejudice.

Orders