SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0232
| OSCAR HIGGINS (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | 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, OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 March 2016 |
| DATE OF JUDGMENT: | 18 March 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 47 |
| JUDGMENT APPEALED FROM: | R v [Higgins] (Ruling No 3) [2015] VSC 614R R v [Higgins] (Ruling No 4) |
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PRACTICE AND PROCEDURE – Interlocutory appeal – Admissibility of evidence – Tendency evidence –Evidence Act 2008 s 97 – Whether state of mind on previous occasions relevant as evidence other than tendency evidence – Whether context and motive evidence admissible for purpose other than tendency purpose – O’Leary v The King (1946) 73 CLR 566, Elomar v The Queen [2014] NSWCCA 303; Leonard v R (2006) 67 NSWLR 545; R v Adam (1999) 106 A Crim R 510, discussed – Evidence admissible for purpose other than tendency reasoning – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M G O’Connell SC with Dr G Boas | Stary Norton Halpen |
| For the Respondent | Mr J W Rapke QC with Ms R J Sharp | Director of Public Prosecutions (Cth) |
REDLICH JA
WEINBERG JA
OSBORN JA
The applicant is charged that between 18 May 2012 and 12 September 2012 he possessed a thing (‘Inspire’ magazine, Issue 9) in connection with assistance in a terrorist act contrary to s 101.4 of the Commonwealth Criminal Code 1995 (the ‘Code’).
The matter came on for trial on 15 October 2013. After pre-trial argument as to the elements of s 101.4 of the Code, his Honour delivered a detailed ruling. That ruling was the subject of an interlocutory appeal by the Crown. This Court upheld the trial judge’s ruling on 17 December 2013. That decision, in turn, was the subject of an application for special leave to the High Court, which was refused on 15 august 2014.
On November of 2014 a new indictment alleging the above count of possession of a thing contrary to s 101.4 of the Code was filed together with a Summary of Prosecution Opening.
On 12 December 2014 the Crown filed a Notice of Tendency Evidence attaching a table identifying 53 items of evidence. The notice stated that the proposed tendency evidence related to:
Whether the accused had the state of mind of intending to possess Inspire magazine.
The accused’s knowledge that Inspire magazine, issue 9, was connected with assistance in a terrorist act.
Whether Inspire magazine, Issue 9, was being used or was intended to be used in the activity of assisting in a terrorist act.
The applicant gave notice of his intention to object to the proposed tendency evidence. On 19 October 2015, pre-trial argument re-commenced. At that time, the Crown disavowed reliance…
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- AGLC
- Higgins (a pseudonym) v The Queen [2016] VSCA 47
- Case
- [2016] VSCA 47
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the state of mind of the applicant on previous occasions was relevant as evidence other than tendency evidence, and whether context and motive evidence could be admitted for a purpose other than the tendency purpose. The court was required to determine if the evidence was admissible under section 97 of the Evidence Act 2008 and if the evidence was relevant for a purpose other than the tendency reasoning. The court also needed to consider the relevant authorities, including O’Leary v The King, Elomar v The Queen, Leonard v R, and R v Adam.
The court held that the trial judge's decision to admit the evidence was correct. The court found that the evidence was relevant for a purpose other than to prove a tendency or propensity of the applicant to commit the offence. The court reasoned that the evidence was admissible under section 97 of the Evidence Act 2008 and was relevant for the purpose of proving context and motive. The court found that the evidence was not inadmissible solely because it had a tendency to prove a propensity or a state of mind on previous occasions. The court concluded that the evidence was admissible for a purpose other than the tendency reasoning, and the application for leave to appeal was refused.
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Evidence
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