MAXWELL P, BUCHANAN, NEAVE, REDLICH and BONGIORNO JJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
18 May 2011, 23 June 2011
DATE OF JUDGMENT:
7 September 2011
MEDIUM NEUTRAL CITATION:
K J M v The Queen (No 2) [2011] VSCA 268
JUDGMENT APPEALED FROM
R v [K J M] (Unreported, Supreme Court of Victoria, Bell J, 3 May 2011 (first ruling) and 26 May 2011 (second ruling))
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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 – Appeal allowed in part – Evidence Act 2008 (Vic) ss 97, 101.
CRIMINAL LAW – Appeal – Interlocutory appeal – Tendency evidence – Ruling on admissibility – Nature of appellate review on interlocutory appeal.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr J V O’Sullivan
Galbally & O’Bryan
For the Respondent
Ms M Williams SC (first hearing) Mr R A Elston SC (second hearing)
Mr C Hyland, Solicitor for Public Prosecutions
MAXWELL P BUCHANAN JA NEAVE JA REDLICH JA BONGIORNO JA:
1 The applicant is charged with murder. It is alleged that she killed her domestic partner by stabbing. She admits the killing but says she acted in self-defence.
2 The Crown has filed a tendency notice under s 97(1)(a) of the Evidence Act 2008 (Vic), 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’.
3 Several categories of evidence are sought to be relied on. Having heard pre-trial argument, the trial judge ruled on 3 May 2011 that the evidence, with certain exceptions, was admissible as tendency evidence.
4 The applicant has sought leave to appeal pursuant to s 295 of the Criminal Procedure Act2009 (Vic) (‘CPA’) 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.
5 The application for leave first came before the Court on 18 May 2011. For reasons given at the time, the application was considered to be premature.[1] Essentially this was because it quickly became clear in argument that, contrary to the assumption on which his Honour had been asked to proceed, the evidence of the Crown witnesses would not go uncontested.
[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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AGLC
KJM v The Queen (No 2) [2011] VSCA 268
Case
[2011] VSCA 268
Decision Date
CaseChat Overview and Summary
In the case of KJM v The Queen, the appellant, KJM, was appealing against a ruling made by the County Court of Victoria in relation to the admissibility of evidence of alleged past violence against a former partner. This evidence was sought to be introduced in the context of a murder trial where the accused was defending himself on the basis of self-defence against his domestic partner, the deceased. The central issue in this interlocutory appeal was whether this past evidence was admissible under the provisions of the Evidence Act 2008 (Vic), specifically sections 97 and 101, which deal with the admissibility of evidence of a person’s character or past conduct.
The court was required to determine whether the evidence of the appellant's past violence could be admitted as 'tendency evidence' to show a propensity to violence, and if so, whether it could rebut the self-defence plea. The appellant argued that the evidence was not relevant to the current charges and that its admission would unfairly prejudice the jury against him. The Crown, on the other hand, contended that the evidence was relevant to show the appellant's state of mind and the context in which the offence occurred. The court carefully considered the statutory provisions and the principles of relevance and fairness in assessing the admissibility of the evidence.
In allowing the appeal in part, the court found that the evidence of the appellant's past violence was indeed relevant to the issue of self-defence and could be admitted to rebut the plea. However, the court also recognised the potential for prejudice and imposed strict guidelines to ensure the evidence was presented in a manner that did not unfairly prejudice the appellant. The court concluded that while the evidence was admissible, its presentation must be tightly controlled to avoid undue prejudice. This nuanced approach balanced the probative value of the evidence against the risk of prejudice, ultimately leading to the partial allowance of the appeal. The court's decision provided clarity on the admissibility of tendency evidence in the context of self-defence pleas, highlighting the importance of a careful and controlled approach to such evidence.