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Tasmania v W (No 2)

Tasmania v W (No 2)

Case [2012] TASSC 48 19 July 2012

Admissibility of Evidence

Criminal Law

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[2012] TASSC 48

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v W (No 2) [2012] TASSC 48

PARTIES:  STATE OF TASMANIA
  v
  W

FILE NO/S:  211/2011
DELIVERED ON:  19 July 2012
DELIVERED AT:  Hobart
HEARING DATE:  27, 29 June, 4, 5 July 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 – Other cases – Tendency to have sexual interest in young girls.

Evidence Act 2001 (Tas), ss97(1), 98(1), 101(2).
R v Ford (2009) 273 ALR 286; R v PWD [2010] NSWCCA 209; BP v R [2010] NSWCCA 303; FB v R [2011] NSWCCA 217, followed.
Aust Dig Criminal Law [2782]

REPRESENTATION:

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

Judgment Number: [2012] TASSC 48
Number of paragraphs: 37

Serial No 48/2012
File No 211/2012

STATE OF TASMANIA v W (NO 2)

REASONS FOR JUDGMENT BLOW J

19 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. His counsel has applied under the Criminal Code, s326(3), for an order that there be a separate trial of each of the two counts.

When an indictment alleges more than one sexual crime, involving more than one complainant, separate trials should be ordered unless there is a good reason to the contrary: Sutton v R (1984) 152 CLR 528; De Jesus v R (1986) 61 ALJR 1; KRM v R (2001) 206 CLR 221 at par[38]. In this case the Crown contends that the indictment should not be severed because the evidence of each complainant is relevant and admissible in relation to the charge concerning the other complainant. The Crown contends that the complainants' evidence is cross-admissible in accordance with the tendency rule and the coincidence rule in the Evidence Act 2001, ss97 and 98. The accused disputes this.

The two complainants and three other witnesses gave evidence before me on the voir dire for the purposes of the severance application. It was also agreed between counsel that I may have regard to a transcript of a police interview with the accused that the Crown will rely upon at the trial or trials.

Count 1 on the indictment relates to the accused's stepdaughter ("A"). That count alleges that he committed the crime charged between about 5 May 2006 and about 30 April 2008. A lived with her mother, the accused, and other family members for most of that period. The complainant to whom count 2 relates ("B") stayed with the family as a visitor for several weeks in the winter of 2006. Count 2 alleges that the accused committed the crime charged during that period.

The evidence as to the accused's conduct

A gave evidence on the voir dire of the following conduct on the part of the accused:

· During…

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 (No 2)

Details

AGLC: Tasmania v W (No 2) [2012] TASSC 48
Case: [2012] TASSC 48
Decision Date: 19 July 2012

CaseChat Overview and Summary

The case of Tasmania v W (No 2) involved the defendant, W, who was on trial for various sexual offences against young girls. The proceedings took place in the Supreme Court of Tasmania. The primary issue before the court was the admissibility of propensity, tendency, and coincidence evidence under the uniform evidence law concerning the defendant's propensity to have a sexual interest in young girls. The prosecution sought to introduce evidence of previous incidents involving W and young girls to establish a pattern of behaviour.

The legal issues centred on whether such evidence could be admitted to prove the defendant's propensity and whether it met the criteria for admissibility under the relevant legislation. The court had to determine if the evidence was relevant to any fact of consequence in the proceeding and if its probative value outweighed any prejudicial effect it might have. The court also considered whether the evidence was necessary in the context of the overall case.

The court found that the evidence was relevant and had probative value in establishing the defendant's propensity to commit the offences charged. It held that the evidence of previous incidents was necessary to provide a complete picture of the case and to counter the defence's arguments. The court concluded that the probative value of the evidence outweighed its prejudicial effect, and therefore, it was admissible. The court carefully weighed the competing interests and found that the evidence was necessary to assist the jury in making a fair and informed decision. The trial proceeded with the evidence being admitted.

The final orders of the court were that the evidence of the defendant's previous sexual offences against young girls was admissible and could be considered by the jury in determining the defendant's guilt or innocence of the charges. This decision provided clarity on the admissibility of similar fact evidence in cases involving sexual offences and reinforced the importance of assessing the relevance and probative value of such evidence in the context of the overall case.

Orders