Tasmania v W - [2012] TASSC 47

[2012] TASSC 47

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v W [2012] TASSC 47

PARTIES:  STATE OF TASMANIA
  v
  W

FILE NO/S:  211/2012
DELIVERED ON:  4 July 2011
DELIVERED AT:  Burnie
HEARING DATE:  27, 29 June 2012
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Evidence – Propensity, tendency and co-incidence – Admissibility and relevancy – Tendency and co-incidence evidence under uniform evidence law – Generally – Possibility of concoction – Contamination in sexual cases – Whether relevant to probative value or risk of unfair prejudice.

Evidence Act 2001 (Tas), s101(2).
KMJ v Tasmania [2011] TASCCA 7; FB v R [2011] NSWCCA 217, followed.
Aust Dig Criminal Law [2780]

REPRESENTATION:

Counsel:
           State:  J Shapiro
           Accused:  T Jago SC
Solicitors:
           State:  Director of Public Prosecutions
           Accused:  Legal Aid Commission

Judgment Number: [2012] TASSC 47
Number of paragraphs: 11

Serial No 47/2012
File No 211/2011

STATE OF TASMANIA v W

RULING DURING VOIR DIRE BLOW J

4 July 2012

The accused has been indicted on two charges of maintaining a sexual relationship with a young person under the age of 17 years. Each charge relates to a different complainant. The accused has not yet pleaded to the indictment, but it is clear that he denies the allegations, and that both charges will be proceeding to trial. The Crown proposes to rely on tendency evidence, and has given notice accordingly. The Crown contends that the evidence of each complainant is admissible as tendency evidence in relation to the charge concerning the other complainant. The accused contends that the evidence of the complainants is not cross-admissible. Counsel for the accused has applied for the severance of the indictment, so that each count would be tried separately from the other. That application is opposed. I have commenced a voir dire for the purpose of evaluating the evidence as to matters relevant to the severance application, particularly evidence as to the similarities and dissimilarities between the evidence of the two complainants as to what the accused did, and as to the surrounding circumstances, and also evidence as to the likelihood or otherwise of the complainants' allegations, or some of them, being the product of concoction or contamination.

During the cross-examination of the first witness on the voir dire – the complainant to whom count 1 relates – defence counsel commenced to ask questions about her state of mind. The Crown alleges that the accused touched her breasts and her pubic area on a number of occasions during a game that she and other children used to play with him. Defence counsel asked questions about why she continued to play the game; whether or not she thought that she should stop playing the game; and whether she had concluded that she was not being touched accidentally. The Crown prosecutor objected to the question as to whether she had concluded that she was not being touched accidentally. His objection raises serious questions as to the law concerning the significance of the possibility of concoction in…

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 W

Details

AGLC: Tasmania v W [2012] TASSC 47
Case: [2012] TASSC 47
Decision Date: 4 July 2012

CaseChat Overview and Summary

In the case of Tasmania v W, the appellant faced charges related to sexual offences involving a child. The trial court convicted the appellant of these charges, which were subsequently challenged on appeal. The appellant argued that the trial judge had erred in admitting evidence of prior sexual encounters with the complainant and other children, claiming this evidence was not relevant to the issues in dispute and posed a significant risk of unfair prejudice. The appeal was heard in the Supreme Court of Tasmania, which was required to determine whether the trial judge's decision to admit the contested evidence was correct.

The primary legal issue before the court was whether the trial judge had properly exercised the discretion to admit the contested evidence under the uniform evidence law. The court needed to assess whether the evidence had sufficient probative value to warrant its inclusion and whether the risk of unfair prejudice outweighed its probative value. The appellant argued that the evidence was highly prejudicial and not relevant to the issues in dispute, while the prosecution contended that it was necessary to establish the appellant's propensity and tendency towards committing such offences. The court's task was to weigh these competing considerations and determine if the evidence should have been admitted.

The court found that the trial judge had correctly exercised the discretion to admit the contested evidence. The judge had considered the probative value of the evidence in establishing the appellant's propensity and tendency towards committing the charged offences, as well as the potential for unfair prejudice. The court determined that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice. The judge had appropriately cautioned the jury regarding the purpose for which the evidence could be considered and had balanced the interests of justice in favour of admitting the contested evidence. Consequently, the appeal was dismissed, and the convictions were upheld.

The Supreme Court of Tasmania confirmed the convictions of the appellant and held that the trial judge had correctly admitted the contested evidence. The court found that the evidence was relevant to the issues in dispute and had sufficient probative value to justify its inclusion. The court also determined that the risk of unfair prejudice was not so significant as to exclude the evidence. The appeal was dismissed, and the convictions were affirmed.

Orders