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DPP v Martin (a Pseudonym)

DPP v Martin (a Pseudonym)

Case [2016] VSCA 219 14 September 2016

Appeal

Admissibility of Evidence

Criminal Procedure Act

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0115

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
PETER MARTIN (A PSEUDONYM)[1]	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Respondent.

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JUDGES:	REDLICH, WEINBERG and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 August 2016
DATE OF JUDGMENT:	14 September 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 219
JUDGMENT APPEALED FROM:	DPP v [Martin] (Unreported, County Court of Victoria, Judge Pullen, 1 June 2016) (Ruling)

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CRIMINAL LAW – Interlocutory appeal by Crown – Applicant facing two charges of incest involving biological sister – Prosecution seeks to lead other acts of misconduct as a child as ‘context evidence’ – HML v The Queen (2008) 235 CLR 334; IMM v The Queen (2016) 330 ALR 382 considered – Whether exclusion of ‘context evidence’ substantially weakens prosecution case – Trial judge rules against admissibility – Whether error in treating presumption of doli incapax as relevant when assessing admissibility of proposed uncharged acts – Presumption not relevant in way in which invoked – Criminal Procedure Act s 295(3)(a) – Appeal allowed – Matter remitted to trial judge for reconsideration in accordance with reasons of Court of Appeal.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C B Boyce SC with Ms D I Piekusis	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr D A Dann QC with Mr J D Kantor	Mike Wardell Solicitors

REDLICH JA
WEINBERG JA
McLEISH JA:

The respondent is currently on trial facing two charges of incest, the complainant being his biological sister. The trial is to be conducted in the County Court, at Ballarat.

By a ruling delivered on 1 June 2016, the trial judge held that certain acts alleged by the complainant to have been committed by the respondent, as a child, upon which the prosecution sought to rely, were inadmissible (‘the interlocutory decision’). Her Honour referred to these acts as ‘uncharged’ acts, a term that has been criticised. As doli incapax, unless rebutted, would provide an answer to any allegation of criminal responsibility by a child, to speak of those acts as ‘uncharged’ is undesirable but as the parties have continued to employ that expression, we shall also do so. Evidence of such acts of sexual misconduct is often referred to as ‘relationship’, ‘context’ or ‘background’ evidence, and is a type of circumstantial evidence. However described, it at least forms part of the background against which the complainant’s evidence is to be assessed. In a case of this kind it may be relevant for a number of different reasons, including: to provide a background against which to understand the charges laid, explain why the complainant complied with the sexual demands of the accused, explain why the complainant failed promptly to complain, and explain the accused’s confidence in committing the sexual acts or his control over the complainant.

Pursuant to s 295(3)(a)…

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 DPP v Martin (a Pseudonym)

Details

AGLC: DPP v Martin (a Pseudonym) [2016] VSCA 219
Case: [2016] VSCA 219
Decision Date: 14 September 2016

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v Martin (a Pseudonym), the appellant sought to appeal the interlocutory decision of the trial judge, who had ruled that certain proposed evidence be excluded from the trial. The respondent, Martin, faced two charges of incest involving his biological sister. The prosecution sought to introduce evidence of other acts of misconduct by Martin as a child, which they argued would provide context for the alleged crimes. The trial judge ruled that the evidence was inadmissible, a decision which the Crown now sought to appeal.

The central issue before the Court of Appeal was whether the trial judge had erred in excluding the proposed evidence. The Court needed to determine whether the exclusion of this evidence substantially weakened the prosecution's case, as required by the precedent set in HML v The Queen and IMM v The Queen. Additionally, the court considered whether the trial judge had erred in treating the presumption of doli incapax as relevant when assessing the admissibility of the proposed uncharged acts. The Court of Appeal was required to determine if the trial judge had correctly applied the relevant legal principles in making the admissibility decision.

The Court of Appeal held that the trial judge had erred in the way in which they treated the presumption of doli incapax when assessing the admissibility of the proposed uncharged acts. The Court found that the presumption was not relevant in the manner in which it was invoked. The Court concluded that the trial judge should have reconsidered the admissibility of the proposed evidence in accordance with the principles established in the cited authorities. The Court allowed the appeal and remitted the matter to the trial judge for reconsideration in light of the Court of Appeal's reasons.

The Court ordered that the matter be remitted to the trial judge for reconsideration of the admissibility of the proposed evidence, in accordance with the Court of Appeal's reasons. The trial judge was required to properly apply the legal principles established in HML v The Queen and IMM v The Queen when making the admissibility decision. The Court did not make a final determination on the admissibility of the evidence but directed the trial judge to undertake the required analysis in light of the Court of Appeal's decision.

Orders