KJM v The Queen - [2011] VSCA 151

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 00089

K J M
	Applicant
v
THE QUEEN
	Respondent

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JUDGES:	MAXWELL P, NEAVE and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 May 2011
DATE OF JUDGMENT:	18 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 151

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CRIMINAL LAW – Appeal – Interlocutory appeal – Murder – Victim was domestic partner – Self-defence raised – Accused’s state of mind in issue – Whether evidence of alleged violence against former partner admissible as tendency evidence – Preliminary ruling on admissibility by trial judge – Evidence untested – Defence proposing to challenge evidence on voir dire – No final decision by trial judge on admissibility – Application premature.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J O’Sullivan	Galbally & O’Bryan
For the Respondent	Ms M Williams SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P (FOR THE COURT):

The applicant is charged with murder. It is alleged that she killed her domestic partner by stabbing. The Crown has filed a tendency notice under s 97(1)(a) of the Evidence Act 2008, giving notice, as required, of its intention to adduce tendency evidence. According to the notice, this evidence will show that the accused had a tendency ‘to act aggressively or violently in the course of arguments or confrontations with boyfriends or partners and in particular to resort to the use of a weapon’.

It is unnecessary to rehearse the categories of evidence sought to be relied on. Having heard pre-trial argument, Bell J ruled on 3 May 2011 that the evidence, with certain exceptions, was admissible as tendency evidence.

The applicant has sought leave to appeal pursuant to s 295 of the Criminal Procedure Act2009 against that interlocutory decision. The proposed grounds of appeal are in the following terms:

1.The evidence sought to be adduced is not significantly probative of any fact in issue;
2.The probative value of the evidence sought to be adduced does not substantially outweigh its prejudicial effect; or alternatively, it was not open for the judge to conclude that the evidence sought to be adduced substantially outweighed its prejudicial effect.

In our view, this application for leave is premature. His Honour was asked to rule on the admissibility of this evidence on an interim basis. As counsel for the applicant has acknowledged before us this morning, his Honour was asked to rule on admissibility on the assumption that the evidence of the witnesses the Crown proposes to call was uncontested.

It seems to us, with respect, that it was very helpful to the parties, and in particular to the defence, to have his Honour give an interim ruling of that kind. His Honour indicated his view about the admissibility of the evidence, and the basis of its admissibility, taking the evidence at its highest. But, as is apparent from the transcript of the discussion between the Bench and counsel this morning (which will be provided to the parties and his Honour in conjunction…

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 KJM v The Queen

Details

AGLC: K J M v The Queen [2011] VSCA 151
Case: [2011] VSCA 151
Decision Date: 18 May 2011

CaseChat Overview and Summary

In the matter of KJM versus The Queen, the appellant sought an interlocutory appeal against a ruling made by the trial judge in a murder case. The appellant, who was charged with the murder of their domestic partner, raised the defence of self-defence. The central issue in the appeal was whether the trial judge's preliminary ruling on the admissibility of evidence concerning the appellant's alleged history of violence against a former partner was correct. This evidence was proposed to be used by the prosecution as tendency evidence. The appellant argued that the evidence should be excluded on the basis that it was irrelevant and prejudicial.

The court was required to determine the appropriate legal framework for assessing the admissibility of tendency evidence in the context of self-defence claims. The court considered the principles established in previous cases, such as R v Morgan and R v Rowney, which set out the criteria for determining the admissibility of tendency evidence. The court also examined whether the trial judge's preliminary ruling on admissibility was premature, given that the evidence had not yet been tested and the defence intended to challenge its admissibility on voir dire.

The court found that the trial judge's preliminary ruling on the admissibility of the tendency evidence was indeed premature. The court held that the trial judge should not have made a ruling on the admissibility of the evidence without conducting a voir dire, as the defence intended to challenge the admissibility of the evidence on voir dire. The court emphasised that the trial judge's role was to make a final decision on the admissibility of the evidence only after it had been tested and the parties had had an opportunity to present their arguments. The court held that the appeal was premature as the evidence had not yet been tested and the trial judge had not made a final decision on the admissibility of the evidence. The court dismissed the appeal on the basis that the application was premature.

Orders