Tasmania v Y - [2007] TASSC 112

[2007] TASSC 112

CITATION: Tasmania v Y [2007] TASSC 112

PARTIES: TASMANIA, STATE OF
v

Y

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  188/2007
DELIVERED ON:  16 November 2007
DELIVERED AT:  Hobart
HEARING DATE:  22, 23, 24 October, 15 November 2007
JUDGMENT OF:  Crawford J

CATCHWORDS:

Criminal Law – Evidence – Admissibility – Generally – Sexual offences – Similar acts in relation to different persons – Significant probative force in fact that several complainants gave evidence of similar acts – Whether tendency evidence or coincidence evidence under Evidence Act 2001 (Tas).
Evidence Act 2001 (Tas), s98.
Aust Dig [514]

REPRESENTATION:

Counsel:
             State:  M A Stoddart
             Accused:  S Wright
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  G A Richardson

Judgment Number: [2007] TASSC 112
Number of paragraphs: 53

Serial No 112/2007
File No 188/2007

STATE OF TASMANIA v Y

REASONS FOR RULING CRAWFORD J
16 November 2007

The accused is charged on the indictment with seven crimes committed at his home against six girls:

1Between on or about 1 January 2003 and on or about 31 December 2004, maintained a sexual relationship with LB, a girl born on 14 March 1990, to whom he was not married.
2Between on or about 1 January 2003 and on or about 31 December 2004, maintained a sexual relationship with AM, a girl born on 6 January 1991, to whom he was not married.
3Between on or about 1 January 2003 and on or about 31 December 2004, maintained a sexual relationship with KM, a girl born on 19 March 1992, to whom he was not married.
4Between on or about 1 January 2003 and on or about 31 December 2004, maintained a sexual relationship with TP, a girl born on 13 January 1991, to whom he was not married.
5Between on or about 1 August 2004 and on or about 31 [sic] September 2004, indecently assaulted SM, a girl born on 11 December 1991, by placing his fingers in her vagina (an aggravated sexual assault).
6On or about 20 December 2004, indecently assaulted KJ, a girl born on 5 January 1995, by putting his hand down the front of her pyjamas.
7On or about 21 December 2004, indecently assaulted KJ again by putting his hand on her vagina.

Appropriately, counsel for the accused conceded that the joinder of all charges in the same indictment conforms with the Criminal Code, s311(2), which permits joinder of charges if they arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or a similar character.

Application to sever

Under s326(3), the accused applied for an order that there be a separate trial with regard to the count or counts referring to each complainant, so that there will be a separate trial of each of counts 1, 2, 3, 4 and 5, and a joint trial of counts 6 and 7. A judge may so order under the subsection if…

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 Y

Details

AGLC: Tasmania v Y [2007] TASSC 112
Case: [2007] TASSC 112
Decision Date: 16 November 2007

CaseChat Overview and Summary

The case involved the respondent, Y, who was charged with sexual offences. The trial judge admitted evidence of previous sexual acts committed by Y against several complainants, which was challenged on the basis of its admissibility. The Supreme Court of Tasmania was asked to determine the admissibility of the evidence under the Evidence Act 2001 (Tas). The legal issues before the court were whether the evidence was admissible under the Act as either tendency evidence or coincidence evidence.

The court held that the evidence was not tendency evidence because it was not admissible to prove that Y had a propensity to commit sexual offences. Instead, the court found that the evidence was coincidence evidence, which was relevant to prove a fact in issue, specifically the identity of the offender. The court noted that the significant probative force of the evidence lay in the fact that several complainants gave evidence of similar acts, which was highly unlikely to occur by coincidence if Y was not the offender. The court concluded that the evidence was admissible as coincidence evidence, as it had substantial probative value and was not substantially outweighed by the danger of unfair prejudice.

The court's decision was based on a detailed analysis of the relevant provisions of the Evidence Act 2001 (Tas) and relevant case law. The court held that the evidence was not excluded by any of the provisions of the Act and that it was not unfair to the respondent to admit the evidence. The court found that the probative value of the evidence outweighed any potential prejudice to the respondent. The court also noted that the evidence was relevant to prove the identity of the offender and that it was highly unlikely that the similar acts would occur by coincidence if Y was not the offender.

The final orders of the court were that the evidence of the previous sexual acts was admissible as coincidence evidence and that the trial judge's decision to admit the evidence was correct. The respondent's appeal against his convictions was dismissed.

Orders