SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
Hoyle v The Queen
Citation:
[2018] ACTCA 42
Hearing Dates:
14–15 May 2018
DecisionDate:
20 September 2018
Before:
Murrell CJ, Burns and North JJ
Decision:
Appeal dismissed.
Catchwords:
APPEAL – CRIMINAL LAW – GENERAL PRINCIPLES – admitting further evidence on appeal – distinction between new evidence and fresh evidence – fresh evidence – whether the absence of fresh evidence at trial amounted to a miscarriage of justice – whether jury would be “reasonably likely” to acquit if they had known of the fresh evidence at trial – whether the fresh evidence meant the appellant would have run the trial differently
CRIMINAL LAW – GENERAL PRINCIPLES – defence of mental impairment – ss 27 and 28 of the Criminal Code 2002 (ACT) –- when accused under a mental impairment – whether the accused did not know the nature and quality of the conduct – whether the accused knew the conduct was wrong – whether the accused could not control the conduct
EVIDENCE – TENDENCY EVIDENCE – multiple complainants of sexual offences – probative value of tendency evidence – whether tendency evidence would cause unfair prejudice – whether the prosecutor used tendency evidence in an impermissible manner – distinction between tendency and coincidence evidence
CRIMINAL LAW – DIRECTIONS TO JURY – conduct of the prosecutor – whether the prosecutor’s errors caused a miscarriage of justice – whether the trial judge’s jury directions cured the prosecutor’s errors
CRIMINAL LAW – DIRECTIONS TO JURY – Liberato directions – whether the trial judge correctly identified to the jury the burden and standard of proof – whether a Liberato direction should have been given – Jovanovic directions – adequacy of directions regarding the complainants’ motive to lie – whether a Jovanovic direction should have been given
EVIDENCE – CREDIBILITY EVIDENCE – s 108C of the Evidence Act 2011 (ACT) – whether the evidence could substantially affect the assessment of the credibility of the witness – whether a failure to address s 192 of the Evidence Act 2011 (ACT) affects the admission of evidence under s 108C
[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.
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Hoyle v The Queen [2018] ACTCA 42
Case
[2018] ACTCA 42
Decision Date
CaseChat Overview and Summary
The appeal concerned a criminal conviction in the Supreme Court of the Australian Capital Territory. The appellant, Hoyle, was convicted of various offences. The appeal raised several grounds, including the admission of further evidence on appeal, the defence of mental impairment, the use of tendency evidence, and alleged errors in jury directions.
The Court of Appeal was required to determine whether the absence of certain fresh evidence at trial amounted to a miscarriage of justice, specifically considering whether the jury would have been reasonably likely to acquit had they been aware of this evidence, and whether its existence would have led the appellant to conduct the trial differently. The Court also had to consider the application of sections 27 and 28 of the *Criminal Code 2002* (ACT) regarding the defence of mental impairment, focusing on whether the appellant understood the nature and quality of his conduct, knew it was wrong, or could not control it. Further issues included the admissibility and prejudicial effect of tendency evidence involving multiple complainants, the propriety of the prosecutor's use of such evidence, and whether any errors by the prosecutor were cured by the trial judge's directions. The adequacy of jury directions concerning the burden and standard of proof, the need for *Liberato* and *Jovanovic* directions regarding complainants' motives to lie, and the application of section 108C of the *Evidence Act 2011* (ACT) to credibility evidence were also central to the appeal.
The Court of Appeal dismissed the appeal. It found that the fresh evidence sought to be admitted was not of a kind that would have reasonably likely led to an acquittal, nor would it have fundamentally altered the trial strategy. The Court also concluded that the trial judge's directions adequately addressed the issues of mental impairment, tendency evidence, and the burden and standard of proof, and that no *Liberato* or *Jovanovic* directions were necessary in the circumstances. The Court found no miscarriage of justice had occurred.