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Henderson (a pseudonym) v The Queen

Henderson (a pseudonym) v The Queen

Case [2017] VSCA 237 6 September 2017

Appeal

Admissibility of Evidence

Tendency Evidence

Interlocutory Orders

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0120

MARTIN HENDERSON (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

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

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JUDGES:	BEACH, FERGUSON and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 August 2017
DATE OF JUDGMENT:	6 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 237
JUDGMENT APPEALED FROM:	[2017] VCC 755 [2017] VCC 756

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CRIMINAL LAW – Appeal – Interlocutory appeal – Rulings before trial as to admissibility – Applicant charged with offences of violence against complainant – Evidence of previous misconduct against complainant – Tendency evidence – Tendency notice – Specificity of tendency – Whether tendency evidence has significant probative value – Evidence of relationship and context – Whether evidence admissible as relationship or context evidence – Leave to appeal granted – Appeal allowed – Evidence Act 2008, ss 97, 101, 135 and 137.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms F Gerry QC with Mr M Page	Mr Greg Thomas Barrister & Solicitor
For the Crown	Mr G Slim	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA

FERGUSON JA
COGHLAN JA:

The applicant is facing trial in the County Court on one charge of common law assault, one charge of making a threat to kill, two charges of rape, one charge of intentionally causing injury and one charge of recklessly causing injury. The charge of recklessly causing injury is an alternative to the charge of intentionally causing injury. All charges relate to conduct which is alleged to have occurred on 5 June 2015, involving the one complainant.

Prior to the alleged offending, the complainant had been in a relationship with the applicant for some years. The relationship commenced in approximately 2010. From time to time there were breaks in the relationship. On the complainant’s evidence, the relationship involved episodes of violence perpetrated on her by the applicant at various times.

On 19 August 2014, some months prior to the events giving rise to the present charges, the complainant gave a 22-page statement to police in which she made a number of allegations of violence and sexual misconduct against the applicant (‘the 22-page statement’). In the statement, the complainant alleged that very soon after the relationship with the applicant commenced, the applicant committed acts of violence upon her, made various threats to kill her or her family members, and engaged in sexual activity with her in circumstances of violence or threats of violence.

The 22-page statement also contained detailed allegations of violent conduct by the applicant against the complainant and threats to kill made by the applicant on 11 August 2014, when the applicant and the complainant were in Williamstown (‘the Williamstown incident’). The significance of the Williamstown incident is that, unlike most of the conduct alleged against the applicant in the 22-page statement, there were witnesses to significant parts of the conduct comprising the Williamstown incident.[2]
[2]Cf IMM v The Queen (2016)…

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 Henderson (a pseudonym) v The Queen

Details

AGLC: Martin Henderson (a pseudonym)[1] v The Queen [2017] VSCA 237
Case: [2017] VSCA 237
Decision Date: 6 September 2017

CaseChat Overview and Summary

The case of Henderson v The Queen involved the appellant, identified as Henderson, who was charged with various offences of violence against a complainant. The matter was heard in the High Court of Australia, which granted leave for an interlocutory appeal concerning the admissibility of certain evidence before the trial. The appellant contested the trial judge's decisions regarding the admissibility of evidence of Henderson's previous misconduct against the complainant and other evidence pertaining to their relationship and the context of the alleged offences.

The primary legal issues the court was required to address revolved around the application of the Evidence Act 2008. Specifically, the court had to determine whether the evidence of Henderson's previous misconduct against the complainant was admissible under the provisions relating to tendency evidence. This required assessing whether such evidence had significant probative value and whether it was appropriate to give the evidence despite any prejudicial effects. Additionally, the court needed to consider whether the evidence could be admitted under the provisions for relationship or context evidence, which might be relevant to understanding the circumstances of the alleged offences.

The court reasoned that the trial judge had applied the correct legal principles in assessing the admissibility of the evidence in question. The court found that the evidence of Henderson's previous misconduct against the complainant did not have significant probative value and was more likely to cause prejudice. The court also determined that the evidence did not fit within the categories of relationship or context evidence, which could have potentially justified its admission. Consequently, the appeal was allowed, and the decision of the trial judge was overturned. The High Court concluded that the evidence should not be admitted at the trial.

Orders