J, KM v State of Tasmania [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Evans J,Blow J,Tennent J
• Judgment Date: 22 June 2011
• Date: 22 June 2011
• Docket Number: 957/2010

[2011] TASCCA 7

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Evans, Blow and Tennent JJ

957/2010

J, KM

and

State of Tasmania

REPRESENTATION:

Counsel:

Appellant: M L Doyle and A J Hall

Respondent: D G Coates SC and J Shapiro

R v Shamouil (2006) 66 NSWLR 228 ; PG v R [2010] VSCA 289, followed.

AE v R [2008] NSWCCA 52 ; PNJ v DPP [2010] VSCA 88, referred to.

Director of Public Prosecutions v Lynch (2006) 16 Tas R 49 , distinguished.

Aust Dig Criminal Law [2676]

R v Cook [2004] NSWCCA 52 ; R v Mundine (2008) 182 A Crim R 302; R v Suteski (2002) 56 NSWLR 182; Galvin v R (2006) 161 A Crim R 449, referred to.

Aust Dig Criminal Law [2680]

Evidence Act 2001 (Tas), ss135 and 137.

Evidence Act 2001 (Tas), ss135 and 137.

Criminal Law — Evidence — Judicial discretion to admit or exclude evidence — Nature of discretion — Generally — Probative value — Relevance of reliability and credibility to probative value.

Criminal Law — Evidence — Judicial discretion to admit or exclude evidence — Prejudicial evidence — Generally — Unfair prejudice arising from procedural considerations.

Order of the Court

• 1 Appeal dismissed.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Evans J

1 The appellant appeals against his conviction for aggravated armed robbery.

2 The evidence that identified the appellant as one of the two perpetrators of the crime is contained in two of three audio visual recordings of statements taken by police from three witnesses. According to the statements the witnesses were present when the crime was committed. When the witnesses were called to give evidence on the appellant's trial, each gave evidence to the effect that she had no recall of the events in question.

3 The appellant accepts the following:

• • That a portion of the statement taken from each witness constituted a prior inconsistent statement by that witness.

• • That the learned trial judge did not err in granting the prosecutor leave pursuant to Evidence Act 2001, s38(1)(c), to cross-examine each witness about her prior inconsistent statement.

• • That the pre-conditions imposed by s43(2) on adducing evidence of a prior inconsistent statement were satisfied in relation to each witness.

• • That the portion of the statement of each witness that was admitted into evidence as a prior inconsistent statement was evidence of the facts asserted therein.

4 The sole ground of appeal is that by reason of s137, the learned trial judge should have refused to allow these prior inconsistent statements to be put into evidence as their probative value was outweighed by the danger of unfair prejudice to the appellant. The outcome of this ground of appeal ultimately turns upon whether the admission of the statements resulted in a miscarriage of justice. This issue is to be determined on the evidence on the trial, there being no complaint about the learned trial judge's summation. For this reason, there is no occasion to review the learned trial judge's reasons for admitting the statements into evidence, and the evidence given on the voir dire referrable to their admission.

5 Section 137 provides that:

‘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.’

6 A related section dealt with in some of the authorities, to which I will refer, is s135(a), which provides that:

‘The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might –

• (a) be unfairly prejudicial to a party…’.

7 Before embarking on the exercise of balancing the probative value of the evidence in question against the danger of unfair prejudice to the appellant, I will canvas the relevant evidence.

8 The prosecution's case was that late in the evening of 1 February 2010, the appellant, another male and three females were travelling together in a vehicle in Mowbray Heights, Launceston. The appellant was driving. He was 17 years of age, and each of his companions was 15 years of age. As all those involved, including the victims, were youths, I will not use their correct names and will adopt pseudonyms for them. The names I adopt are:

• • Kevin, for the appellant;

• • Tom, for the other male;

• • Mandy, Chloe and Tina for the three females; and

• • Stewart and Alan for the victims.

9 Stewart and Alan gave uncontested evidence that at about 10.30pm on 1 February 2010, they were together, making their way home along Vermont Road, Mowbray Heights from their place of work, a Hungry Jack's restaurant. Stewart was riding a bike and Alan was walking. They were confronted by two young men who demanded their bags, phones and wallets. Stewart said that one of the young men was carrying a golf club and the other a pipe or something. Stewart handed them his backpack and Nokia phone. He did not have a wallet. His backpack contained his work clothes. Alan said that both of the young men were carrying golf clubs. Alan handed them his bag which was black and grey in colour, his wallet and his Nokia E51 mobile phone. His bag contained his work uniform. Stewart and Alan did not resist the robbers and the robbers did not strike them.

10 The indictment on which the appellant was tried included a second charge of attempting to commit aggravated robbery. He was acquitted on this charge. The alleged victim of that attempt, who I will refer to as Jack, gave evidence that at about 2am on the night in question he was walking in George Town Road, Mowbray Heights, with three female companions when a two-door blue or purple Hyundai Excel stopped nearby and two males and two females alighted. He knew the males, they were Kevin and Tom. He did not know the females. Kevin and Tom attempted to rob him. One of the females had a baseball bat. There was a third female in the car, who was yelling at the others to return to the car.

11 At about 4pm on 2 February 2010, police located Kevin, Mandy, Chloe and Tina in Room 17 at the North Lodge Hotel, Launceston. Property found in that room included five mobile phones, a number of bags and a number of items strewn throughout the room. The phones included a new and an old Nokia.

Chloe's prior statement

12 Chloe was interviewed by police at 6.38pm on 2 February 2010. In the course of a portion of her interview that was played to the jury she acknowledged that earlier that afternoon she had been located by police at the North Lodge Hotel. She said that she had only had one drink over the previous weekend and that it had not really affected her. She said that prior to going to the hotel, she and others had been driving about. She was asked whether she knew anything about an incident in Vermont Road where two males with an iron bar and a golf club had taken property that included backpacks from some people. She volunteered that they had seen two people in Vermont Road, one of whom was walking. As to what then ensued, the following is the transcript of the relevant portion of her interview that was played to the jury. I have not edited any of the transcripts I will quote from, save for making the name substitutions already mentioned.

‘BK Okay. Who pointed them out?

Ch Everyone. Like everyone in the car.

BK And by pointing them out what, what was going to happen when they got pointed out?

Ch Get their bags and stuff like see what they have.

BK And what did happen.

Ch Um Kevin and Tom got out with weapons and I think

BK Now when you say weapons,

Ch The baseball bat and the golf club.

BK And the golf club. Okay. And who had the golf club.

Ch I don't know. I'm not sure.

BK And did Tina get of the car this time.

Ch No.

BK Any reason.

Ch I think Kevin and Tom told us to stay in the car.

BK And did you stay in the car.

Ch Yeah.

BK Right. And what did you see happen after they got out.

Ch I didn't see anything cause we were just looking straight away.

BK Did you know what was going to happen?

Ch That they were just going to get their bags, they didn't get hit. I didn't think they would hit them.

BK Did you see if they did get though or didn't get hit.

Ch Yeah cause Kevin and Tom come back and said they didn't hit them cause they didn't need to hit them.

BK Now what, did they bring anything back with them Kevin and Tom.

Ch Yeah a bag.

BK How many bags.

Ch Just one.

BK Just one. Okay. Can you describe the bag for me?

Ch It was a backpack a black one maybe.’

13 She was also asked if she knew anything about an incident in George Town Road. The transcript of the only portion of her interview that was played to the jury referable to that incident is:

‘Ch Is that with the three girls and the guy.

BK Yep.

Ch Yeah we were driving past and the girls yelled out something so we stopped, we turned, we got Kevin, us girls got Kevin to turn around and yeah we pulled up beside them and asked what their problem was and yeah and then the guy, Tom and Kevin recognised the guy, it was [Jack] or that's what his name was.

BK Okay.

Ch So they got out the car.’

Chloe's evidence before the jury

14 When initially called to give evidence, Chloe agreed that she knew Kevin, Tina and Mandy and had known them in February 2010. She recalled being in a room at the North Lodge Hotel in February 2010 with them and Tom. She said she could not remember what she had been doing before she got to the hotel on that occasion because she had ‘heaps of drugs and alcohol in [her] system’. She denied any recall of being in a motor vehicle with them. Following this evidence, the prosecutor applied for and obtained leave to cross-examine her. When cross-examined she agreed that police had come to the hotel room at the North Lodge Hotel where she had been with Kevin, Tom, Tina and Mandy, and that she had left the hotel with the police. She denied any recall of having been interviewed by police at 6:30pm that same day. She denied any recall of questions...