The Queen v TR and VG - [2004] ACTSC 10

THE QUEEN v TR and VG [2004] ACTSC 10 (19 March 2004)

CRIMINAL LAW – application for pre-trial ruling – whether discretion to exclude evidence not exercisable until evidence tendered – whether prior indication of likely view appropriate.

Evidence Act 1995 (Cth), s 137

TKWJ v The Queen [2002] HCA 46
The Queen v Frank Fischetti and Maria Caggiano [2003] ACTCA 5

No SCC 68 and 69 of 2003

Judge: Crispin J
Supreme Court of the ACT
Date: 19 March 2004

IN THE SUPREME COURT OF THE       )
  )          No. SCC 68 and 69 of 2003
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN

v

TR

and

VG

ORDER

Judge:  Crispin J
Date:  19 March 2004
Place:  Canberra

THE COURT DIRECTS THAT:

the matter be listed before the Registrar for allocation of a date for the further trial of both accused;
there be no publication of the names of the accused in the context of the reasons for judgment herein.

In this matter the accused have been committed for trial on serious criminal charges. A jury has not yet been empanelled and it is necessary to avoid any description of the case that might prejudice a fair trial of the accused.

Counsel for both accused foreshadowed objections to the admissibility of certain evidence which the learned prosecutor submitted was of crucial importance to the Crown case. It was agreed that I would need to hear the evidence on the voir dire in order to rule upon the objections. It was also agreed that it would be inconvenient to defer any ruling until the evidence was actually tendered by the Crown. Accordingly, I acceded to the application to hear the evidence on the voir dire and heard the competing arguments of counsel.

It is now clear that the evidence is admissible but that there are strong grounds for contending that it should be excluded pursuant to section 137 of the Evidence Act 1995 (Cth) which provides as follows:

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

On the basis of the evidence adduced on the voir dire I have formed a view as to the manner in which the discretion arising under s 137 should be exercised.

However, whilst rulings as to admissibility of evidence may be made even during pre-trial proceedings, it appears that a judge may not be entitled to make any ruling as to whether evidence should be excluded on discretionary grounds until the evidence in question is actually tendered at the trial. In TKWJ v The Queen [2002] HCA 46 the High Court of Australia dealt with an appeal in which it was argued that a judge of the District Court of New South Wales should have given an advance ruling that, if the Crown tendered certain evidence in rebuttal of character evidence adduced by the accused, it would be excluded on discretionary grounds. Gaudron, Gummow and…

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 TR and VG

Details

AGLC: The Queen v TR and VG [2004] ACTSC 10
Case: [2004] ACTSC 10
Decision Date

CaseChat Overview and Summary

The Queen v TR and VG was a criminal case before the Supreme Court of the Australian Capital Territory. The accused, TR and VG, faced serious criminal charges and were committed for trial. Before the empanelment of the jury, counsel for both accused raised objections to the admissibility of certain evidence that the prosecutor deemed crucial. The court had to determine whether the discretion to exclude evidence under section 137 of the Evidence Act 1995 (Cth) could be exercised before the evidence was tendered, or if it could only be ruled upon once the evidence was actually presented at trial.

The court examined the legal issues surrounding the timing of the exercise of the discretion to exclude evidence. The court found that while rulings on admissibility could be made during pre-trial proceedings, the discretion to exclude evidence on the grounds of unfair prejudice to the defendant could not be exercised until the evidence was actually tendered. This interpretation was based on the High Court decision in TKWJ v The Queen [2002] HCA 46, where it was held that a judicial discretion can only be exercised when the occasion for making the relevant decision arises. The court noted that this approach avoided the risk of a judge making an advance ruling that might later prove inappropriate.

In this case, despite the evidence being admissible, the court indicated that it would likely exclude certain evidence related to surveillance of the accused or individuals accompanying them prior to the alleged offences, if no further evidence was presented. This indication was not a ruling but rather an expression of the court's present view, intended to guide the parties and avoid unnecessary delays and complications during the trial. The court directed that the matter be listed for further trial and ordered that the names of the accused not be published in the context of these reasons for judgment.

Orders