The Queen v David Dennis Whyms - [2010] ACTSC 91

THE QUEEN v DAVID DENNIS WHYMS
[2010] ACTSC 91 (26 August 2010)

EVIDENCE – admissibility of a portion of a transcript of proceedings from the ACT Magistrates Court – whether slip of the tongue by accused while giving evidence was an admission – turns on its facts.
EVIDENCE – balancing probative value of the evidence against unfair prejudice to the accused if the evidence is admitted as required by section 137 Evidence Act 1995 (Cth) – possibility that the trier of fact may reason impermissibly if evidence is admitted – evidence inadmissible.

Evidence Act 1995 (Cth) ss 97, 137

Court Procedures Rules 2006 (ACT) rule 4733

Clark v United States 61 F.2d 695 (5^th Cir, 1932) affirmed 289 US 1
Doney v the Queen (1990) 171 CLR 207
R v Galbraith [1981] 1 WLR 1039
R v Shamouil [2006] NSWCCA 112
R v Cole (1810) noted [1946] 1 KB 544
R v Christie [1914] AC 545
Valenzuela v Bretherton [2001] ACTSC 9
R v DBG (2002) 133 A Crim R 227
R v Sood [2007] NSWCCA 214
Director of Public Prosecutions (Tasmania) v Lynch (2006) 166 A Crim R 327
R v Joyce (2002) 173 FLR 322
R v BD (1997) 94 A Crim R 131
Papakosmas v The Queen (1999) 196 CLR 297
R v GK (2001) 53 NSWLR 317
Williams (2000) 119 A Crim R 490
Le (2002) 130 A Crim R 44
Makin v Attorney General for New South Wales [1894] AC 57

Australian Law Reform Commission, Evidence (AGPS: Canberra, 1987) Report No. 38, volume 2.

EX TEMPORE

No. SCC 116 of 2009

Judge: Refshauge J
Supreme Court of the ACT

Date: 26 August 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCC 116 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

R

v

DAVID DENNIS WHYMS

ORDER

Judge:  Refshauge J
Date:  25 August 2010
Place:  Canberra

THE COURT ORDERS THAT:

The application by the Crown to tender a portion of a transcript of proceedings in the Magistrates Court is dismissed.

In the United States of America, appellate courts, in reviewing cases tried without a jury, will not ordinarily reverse a trial judge on the ground of the admission of incompetent evidence if there is competent evidence received sufficient to support the findings. The judge will be presumed to have disregarded the inadmissible and relied only on the competent evidence. See Clark v United States 61 F.2d 695 (5^thCir, 1932) affirmed 289 US 1.

Despite the existence of the proviso, this approach does not really pertain in Australia and so, even in criminal trials conducted by a judge sitting without a jury, it is necessary to ensure that only admissible evidence is before the judge, who is, of course, the tribunal of fact.

In criminal trials, this is made more technical because s 137 of the Evidence Act 1995 (Cth) (the Evidence Act) makes evidence inadmissible where the probative value of that evidence is outweighed by the danger of unfair prejudice to 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 The Queen v David Dennis Whyms

Details

AGLC: The Queen v David Dennis Whyms [2010] ACTSC 91
Case: [2010] ACTSC 91
Decision Date: 26 August 2010

CaseChat Overview and Summary

In the case of The Queen v David Dennis Whyms, the appellant faced charges in the ACT Magistrates Court, which were subsequently appealed to a higher court. The nature of the dispute involved the admissibility of a specific portion of a transcript from the earlier proceedings. This transcript contained a slip of the tongue by the accused during his testimony, which the Crown sought to use as an admission of guilt.

The primary legal issue the court needed to decide was whether this inadvertent verbal error could be construed as an admission by the accused, and if so, whether its probative value outweighed any potential prejudice to the accused. The court also had to consider the requirements of section 137 of the Evidence Act 1995 (Cth), which mandates a balancing test between the probative value of the evidence and the risk of unfair prejudice to the accused. Additionally, the court examined whether admitting such evidence might lead the trier of fact to reason impermissibly.

The court ruled that the probative value of the transcript in question did not sufficiently outweigh the potential for unfair prejudice to the accused. It was determined that admitting such evidence might indeed lead the trier of fact to reason impermissibly, thus affecting the fairness of the trial. Consequently, the application by the Crown to tender the disputed portion of the transcript was dismissed.

Orders

Orders of the court

The application by the Crown to tender a portion of a transcript of proceedings in the Magistrates Court is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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