Criminal Law - Evidence - Propensity, tendency and co-incidence - Admissibility and relevancy - Propensity evidence - Effect of previous acquittal - Acts subject of prior charges on which accused acquitted - No evidence offered - Duplicitous charges.

Garrett v R [1977] HCA 67; (1977) 139 CLR 437; R v Storey [1978] HCA 39; (1978) 140 CLR 364; Rogers v R (1994) 181 CLR 251; R v Young [1998] 1 VR 402, followed.

R v VN [2006] VSCA 111; (2006) 15 VR 113, distinguished.

Judgment Number: [2011] TASSC 74

(Edited version of oral ruling during voir dire) 7 December 2011

1 I have come to the conclusion that the evidence that the Crown wishes to lead of the accused doing acts that fall within the description of the acts alleged in the three complaints Nos 52740/11, 52741/11 and 55130/10 from the Devonport Court of Petty Sessions is not admissible.

2 The accused has been charged on indictment with a count of wounding, alleging that at Devonport on or about 11 February 2011 he unlawfully wounded Natalie Marie Patrick by striking her to the face with a glass. He has pleaded not guilty to that charge. Ms Patrick was his partner. I have been asked to make a number of determinations as to the admissibility of evidence prior to the empanelment of the jury, in accordance with the Criminal Code, s361A.

3 The first issue that I have been asked to determine is whether the Crown may adduce, as relationship evidence and/or tendency evidence, evidence of the accused doing acts which were, or might have been, the subject of the three complaints that I have referred to. Each of those three complaints was dismissed as a result of a prosecutor telling a magistrate that he or she offered no evidence in relation to them. Counsel for the accused contends, rightly in my view, that leading any evidence of the acts that were the subject of the charges, or fell within the scope of the charges, is impermissible because the accused is entitled to the full benefit of the acquittals in relation to the charges in the complaints in the lower court.

4 There is a body of High Court authority that makes it quite clear that, when there is an acquittal in relation to a charge of a crime or offence, the defendant or accused person who has been acquitted is entitled to the full benefit of that acquittal in subsequent criminal proceedings and that, on a subsequent criminal trial, the acquittal in the earlier proceedings is incontrovertible. That rule has emerged from the High Court decisions in Garrett v R [1977] HCA 67; (1977) 139 CLR 437, R v Storey [1978] HCA 39; (1978) 140 CLR 364, and Rogers v R (1994) 181 CLR 251.

5 All of those cases involved earlier acquittals by juries who had heard evidence in criminal trials. A fundamental question that arises in this case is whether the same principle applies in a situation where an acquittal occurred not because a jury having heard evidence was not satisfied of guilt beyond reasonable doubt, but where the acquittal came about as a result of a prosecutor offering no evidence, and where that occurred not in a jury trial, but in a magistrate's court. Counsel for the accused relied on a decision of the Victorian Court of Appeal in R v Young [1998] 1 VR 402. That was a somewhat similar case, in that the Crown in that case led evidence at a criminal trial of evidence of sexual acts that had been the subject of charges that did not proceed as a result of a prosecutor offering no evidence. The Crown in that case relied upon that evidence as relationship or tendency evidence in relation to the trial of other alleged sexual crimes. The Court of Appeal held that the evidence should not have been admitted on the basis of what the High Court had said in Garrett, Storey and Rogers (above).

6 Counsel for the Crown today has argued that I should distinguish Young on the basis that the legislation in Victoria contained a provision which is not to be found in the Tasmanian legislation. Under the Crimes Act 1958 (Vic), s391, a not guilty verdict, entered by a judge as a result of a prosecutor informing the trial judge that he or she would lead no evidence, has to be given the same effect as a not guilty verdict of a jury. A proviso in the section read as follows:

"Provided that where a person arraigned on any indictment or presentment pleads 'Not Guilty' to any count in respect of which the prosecution proposes not to lead evidence the prosecution shall so inform the trial judge before a jury is empanelled and the trial judge shall thereupon direct that an entry of 'Not Guilty' be made upon the record in respect of such count and every such entry shall have effect as if it were the verdict of a jury upon the trial of the accused person on that count." [My emphasis.]

Tasmania does not have a statutory provision equating an acquittal as a result of no evidence being tendered with an acquittal by a jury at a trial.

7 However I have come to the conclusion that that does not warrant Young's case being distinguished. First of all, the Court of Appeal in Young's case went on, immediately after quoting the proviso in s391, to refer to a number of authorities concerning verdicts of acquittal by juries in the situation where a prosecutor announced to a jury that no evidence would be tendered. In my view all that s391 does is to confirm that the effect of an acquittal by a judge alone is the same as the effect of an acquittal by a jury in a situation where a prosecutor tells the jury that no evidence will be tendered. What the Court of Appeal held in Young is that in that situation the accused person is entitled to the full benefit of the acquittal.

8 I think it must follow that, at least as a general rule, when a magistrate acquits a defendant as a result of a prosecutor informing the magistrate that no evidence will be tendered, then that defendant in subsequent criminal proceedings is entitled to the full benefit of the acquittal, and that therefore no evidence may be adduced in those subsequent criminal proceedings of the defendant doing acts which could have led to a conviction on the charges which have been dismissed. That result, I think, is consistent with the reasons for the rule in question which were discussed and thoroughly analysed by Gleeson CJ and Hayne J in R v Carroll (2002) 213 CLR 635. Those reasons have to do with "the imbalance of power between prosecution and accused, seriousness for an accused of conviction, prosecution as an instrument of tyranny and the importance of finality"; per Gleeson CJ and Hayne J at par[23]. They do not have anything to do with the sanctity of the conclusions of juries per se. They have to do with much more general matters. So, as a general rule then, an acquittal may not be controverted in subsequent criminal proceedings, and in particular it may not be controverted by the leading of evidence of acts within the scope of charges that have been the subject of acquittals.

9 There are exceptions to that rule. There are situations when evidence relating to charged acts that have been the subject of acquittals may still be relevant. One example of such a case is R v Calcedo [1986] VicRp 51; [1986] VR 499. There the accused had been acquitted of malicious wounding. A trial of robbery charge proceeded. The victim of the alleged robbery and the alleged wounding was cross-examined in relation to her identification of the accused in such a way as to make relevant the fact that, at the time of the identification, she was suffering from a wound. The Full Court held that the evidence as to the wound, but not as to the accused having inflicted it, was relevant, and that there was no need for the jury to be told of the acquittal. That is a situation in which the adducing of evidence relevant to the dismissed charge did not involve impugning the verdict of acquittal. That is a different situation from what we face here.

10 A similar situation existed in Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492, where a man had been acquitted on a conspiracy charge relating to methylamphetamine. He was subsequently tried on a charge relating to the proposed importation of methylamphetamine. The High Court held that all that the acquittal established was that there had not been an unlawful conspiracy between the accused and two other men, and that evidence relating to methylamphetamine and its importation could be admitted without breaching the rule about the incontrovertibility of an acquittal.

11 Another situation in which it is proper to adduce evidence that formed the basis of charges already dismissed, was considered by the Victorian Court of Appeal in R v VN [2006] VSCA 111; (2006) 15 VR 113. In that case charges had been dismissed because they were duplicitous. The Victorian Court of Appeal held that, in that situation, the rule in question did not apply because the verdict of not guilty did not amount to a verdict that the accused was not guilty of anything in particular, but rather it represented only a determination that the charges were defective. So on that basis the acquittal on the earlier charges was held not to preclude the adducing of evidence that was consistent with the dismissed charges.

12 The court in that case was referred to a South Australian Full Court decision - R v BRP [2004] SASC 323. Unfortunately I think the summary of that case given by Redlich JA at par[85] is inaccurate. With all due respect to his Honour, and to the two eminent judges who fully agreed with his Honour's reasons, I think I should give my own analysis of what that South Australian case stands for. The principal judgment was given by Mullighan J, with whom Nyland and Anderson JJ agreed. That was a sex case. Mr P was charged in relation to counts involving a number of complainants. An order was made for separate trials. He was tried and acquitted on counts 1 and 10. There followed a trial of counts 2 to 7. He was convicted on counts 2 to 6 inclusive. Some of the evidence relating to those counts had been adduced at the trial of counts 1 and 10, apparently as tendency and/or relationship evidence. The Full Court held that reliance on the evidence in question, on the trial of counts 1 and 10, did not prevent the same evidence being called again on some of counts 2 to 7. The principle discussed in Garrett, Storey and Rogers (above) was referred to. The case that the Full Court needed to consider was Carroll (above), where the High Court held that the acquittal on the murder charge, because of the issues in the subsequent perjury case, was of such a nature that it was an abuse of process to proceed with the perjury charge.

13 In R v BRP it was necessary for the Full Court to consider the possible bases upon which the jury might have acquitted on counts 1 and 10 in order to determine whether it was impermissible for the evidence relating to counts 3 and 5 to be relied upon again, having been relied upon on the trial of counts 1 and 10. It was concluded that that evidence could be relied upon again, consistently with the High Court cases that I have referred to. Count 1 was a charge of a particular alleged act of vaginal intercourse. Count 10 related to a particular alleged act of fellatio. The verdicts of not guilty in relation to those two charges were held not to preclude the Crown from leading again evidence of acts that were the subject of some of the charges at the subsequent trial. The verdicts of not guilty on counts 1 and 10 were not held to amount to verdicts that there was never a sexual relationship between Mr P and the complainant to whom counts 1 and 10 related. That is very different from what Redlich JA said about that case in R v VN.

14 The principle that emerges, though, from R v VN is that, if there is a dismissal of a criminal charge because the charge is defective, then that is not a dismissal that attracts the rule discussed in Garrett, Storey and Rogers (above).

15 The Crown submits that that is the situation that we now face, at least in relation to complaint 52740/11. There were three charges on that complaint. They were all dismissed as a result of no evidence being tendered. And they were all duplicitous. Count 1 alleged that the accused committed the offence of assault contrary to the Police Offences Act 1935, s35(1), between 1 February 2011 and 27 May 2011 at Devonport by assaulting Ms Patrick by head butting her on several occasions. Count 2 alleged that he committed the offence of assault between the same dates at Devonport by choking her on several occasions. Count 3 alleged that he contravened the Family Violence Act 2004, s35(1), by breaching a family violence order between the same dates at Devonport, by head butting Ms Patrick on several occasions.

16 In my view, although those charges were duplicitous, it was open to a magistrate to convict the accused on each of those charges, even in relation to different acts on different days in respect of the same charge. On that basis I think that VN is distinguishable. The reason that the rule in Garrett, Storey and Rogers was held not to apply in VN was that the dismissed charges in VN were charges on which there could not have been a lawful conviction. But, in Tasmania in proceedings in a court of petty sessions, the Justices Act 1959, s29, displaces the common law rules about duplicity, and contains provisions that make it possible for convictions to be entered on counts in complaints that are duplicitous.

17 Subsections (3), (4) and (5) of that section read as follows:

"(3) If, contrary to subsection (2), any paragraph in a complaint includes more than one matter of complaint, the justices may, upon such terms and conditions as they think fit, at any stage of the hearing permit the complainant to amend that paragraph so that it shall include only one matter of complaint and to add a new paragraph or new paragraphs with respect to the other matter or matters of complaint.

(4) Where, on the hearing of a complaint, it appears to the justices that the defendant may be prejudiced or embarrassed in his defence because the complaint contains more than one matter of complaint or that for any other reason it is desirable to direct that one or more of the matters of complaint should be heard separately, the justices may order a separate hearing of any matter of complaint.

(5) On the hearing of a complaint that does not comply with subsection (1) -

(a) the justices shall, on the application of the defendant, require the complainant to choose one matter of complaint on which to proceed, and shall strike out of the complaint all other matters, without prejudice to the right of the complainant to lay a fresh complaint against the defendant in respect of any matter so struck out; or

(b) if the defendant does not so apply, the justices shall proceed to hear the evidence, and shall determine which matter or matters of complaint, if any, is or are proved, and may convict the defendant accordingly."

It seems to me that, under s29(5)(b), there is at least a possibility that a defendant may be convicted of two separate offences on the basis of one duplicitous paragraph in a complaint.

18 The complaint was dismissed on 4 August 2011. At least in relation to acts alleged to have occurred after 4 February 2011, there would have been no limitation problem and no impediment to the complaint being amended to separate into separate paragraphs, acts alleged to have occurred on different days within the period that was the subject of the charges. See the Justices Act, s26(1)(a).

19 On that basis, I think VN should be distinguished. In relation to complaint 52751/11, there is a single charge relating to a hole in a wall and a hole in a wardrobe door, said to have been caused by the accused in contravention of a family violence order between 6 May 2011 and 28 May 2011. On its face it is not clear whether that complaint relates to two alleged offences or a single course of conduct resulting in two holes and amounting to only one offence. But if it is duplicitous, I think VN is distinguishable.

20 Complaint 55130/10 contains a single charge of assault said to have been committed by means of two punches. I do not think any question of duplicity arises in relation to it.

21 In my view the accused could lawfully and properly have been convicted if evidence had been adduced in relation to any or all of the three charges in complaint 52740/11. I think that Young is indistinguishable and should be followed. In my view the accused is entitled to the full benefit of his acquittal on the three complaints and the Crown is now precluded from adducing at his trial any evidence of acts that fall within the scope of the offences alleged in the three complaints.