SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Tully v The Queen |
Citation: | [2016] ACTCA 4 |
Hearing Date(s): | 6 August 2015 |
DecisionDate: | 17 February 2016 |
Before: | Murrell CJ, Penfold and North JJ |
Decision: | On Counts 1, 2, 3 and 5, appeal allowed, verdicts and consequent orders set aside and verdicts of not guilty entered. Otherwise, appeal dismissed. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Tendency evidence – concoction – separate trials – unsafe and unsatisfactory – alleged incompetence of counsel WORDS AND PHRASES – “Probative value” – Evidence Act 2011 (ACT) Dictionary |
Legislation Cited: | Crimes (Amendment) Act 1995 (ACT) Crimes Act 1900 (ACT) ss 55, 70, 92E, 92S Human Rights Act 2004 (ACT) s 25 |
Cases Cited: | AE v The Queen [2008] NSWCCA 52 Ahmu v The Queen [2014] NSWCCA 312 |
Texts Cited: | Heydon, Dyson, ‘Is the Weight of Evidence Material to its Admissibility?’ (2014) 26 Current Issues in Criminal Justice 219 Odgers, Stephen, Uniform Evidence Law (Thomson Reuters, 11th ed, 2012) |
Parties: | Cameron Flynn Tully (Appellant) The Queen (Respondent) |
Representation: | Counsel Self-represented (Appellant) Mr S Drumgold (Respondent) |
| Solicitors Self-represented (Appellant) ACT Department of Public Prosecutions (Respondent) | |
File Number(s): | ACTCA 55 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 3 October 2014 Case Title: R v Tully (No 3) Citation: [2014] ACTSC 275 |
MURRELL CJ AND NORTH J:
The appeal
The appellant was tried by a jury on 23 counts of historical child sexual abuse. He was represented by experienced trial counsel. On 6 June 2014, the jury found the appellant guilty of 18 counts. He was convicted and sentenced to a total period of 14 years and six months’ imprisonment, with a non-parole period of nine years’ imprisonment. He appealed against the convictions.
In the notice of appeal the appellant asserted that:
(a)The trial judge erred in permitting the evidence on each charge to be lead as tendency evidence on the other charges. The appellant said that his Honour should have found that the probative value of the tendency evidence did not substantially outweigh the…
Continue reading Tully v The Queen
Sign in free to access the full text
- AGLC
- Tully v The Queen [2016] ACTCA 4
- Case
- [2016] ACTCA 4
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were: (1) whether the trial judge erred in admitting evidence of alleged prior sexual misconduct by the appellant as tendency evidence, and if so, whether this evidence possessed sufficient probative value to outweigh its prejudicial effect; (2) whether the trial judge erred in refusing to grant separate trials for the different counts; (3) whether the appellant's trial counsel was so incompetent as to render the trial unfair; and (4) whether, in light of these issues, the verdicts of guilty were unsafe and unsatisfactory.
The Court of Appeal found that the evidence of prior sexual misconduct, admitted as tendency evidence, did not have sufficient probative value to justify its admission, particularly given its highly prejudicial nature. The Court reasoned that the evidence did not establish a sufficient degree of relevance to the charges before the jury, and its admission risked the jury convicting the appellant based on a propensity to commit such offences rather than on the evidence relating to the specific charges. The Court also considered the cumulative effect of admitting this evidence and the refusal to grant separate trials, concluding that these factors, when viewed together, rendered the verdicts on certain counts unsafe and unsatisfactory. The alleged incompetence of counsel was also considered, but the Court found it did not independently establish grounds for appeal.
Consequently, on Counts 1, 2, 3 and 5, the appeal was allowed, the verdicts and consequent orders were set aside, and verdicts of not guilty were entered. The appeal was otherwise dismissed.
Orders
Orders of the court
On Counts 1, 2, 3 and 5, appeal allowed, verdicts and consequent orders set aside and verdicts of not guilty entered. Otherwise, appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.