SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | KQE v The Queen |
Citation: | [2022] ACTCA 18 |
Hearing Date: | 20 April 2022 |
DecisionDate: | 27 April 2022 |
Before: | Elkaim J |
Decision: | See [46] |
Catchwords: | APPEAL – APPLICATION – Application for leave to appeal against orders made in the Supreme Court – tendency evidence – whether primary judge incorrectly assessed probative value of relevant evidence in respect of certain uncharged acts allegedly committed by the accused – whether the primary judge should have ruled that an admission made by the accused to a police officer be excluded from evidence |
Legislation Cited: | Crimes Act 1914 (Cth) s 23V Evidence Act 2011 (ACT) ss 85, 90, 97A, 138 Supreme Court Act 1933 (ACT) s 37J |
Cases Cited: | DS v R [2018] NSWCCA 195; 274 A Crim R 551 R v DL [2018] ACTCA 9 |
Parties: | KQE (Appellant) The Queen (Respondent) |
Representation: | Counsel J Cooper (Appellant) K McCann (Respondent) |
| Solicitors Aboriginal Legal Service (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 13 of 2022 |
Decision under appeal: | Court/Tribunal: Supreme Court Before: McWilliam AJ Date of Decision: 4 April 2022 Case Title: R v KQE Citation: [2022] ACTSC 69 Court File Numbers: SCC 65 of 2021; SCC 135 of 2021 |
Elkaim J:
I have heard this matter as a single judge of appeal pursuant to s 37J of the Supreme Court Act 1933 (ACT).
On 4 April 2022 McWilliam AJ handed down her decision on a number of interlocutory applications that had been listed for pre-trial determination (R v KQE [2022] ACTSC 69).
There were six applications filed, but three were resolved prior to the hearing. Two of the applications, which were decided contrary to the submissions of the current applicant, generated an application for leave to appeal from an interlocutory judgment. This application was filed on 11 April 2022.
The current application (henceforth to be referred to as the application) requests that leave be given to appeal against the following orders made by McWilliam AJ:
Order 1: In respect of the application in proceeding filed by the Crown on 10 September 2021, the applicant is permitted to adduce tendency evidence as notified in the Amended Notice of Intention to Adduce Tendency Evidence dated 14 December 2021.
Order 2: The statement made by the accused to Senior Constable Vesna Johnston on 28 October 2020 is admissible at the accused’s trial.
At this stage the accused is due to go to trial on 4 July 2022. If the application is granted the parties envisaged that an appeal would not be heard until November 2022 or later. The accused is currently in custody awaiting his trial.
The parties agreed that the principles to be applied in considering leave to appeal from an interlocutory decision were set out by Burns J in R v DL [2018] ACTCA 9. The Crown correctly…
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- KQE v The Queen [2022] ACTCA 18
- Case
- [2022] ACTCA 18
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CaseChat Overview and Summary
The Court was required to determine whether the primary judge had incorrectly assessed the probative value of the tendency evidence in relation to the uncharged acts. Additionally, the Court had to consider whether the primary judge should have excluded the admission made by the applicant to the police officer from evidence.
The Court's reasoning focused on the principles governing the admission of tendency evidence and admissions. It examined the balance between the probative value of such evidence and its potential prejudicial effect. The Court applied established legal principles concerning the admissibility of evidence, considering whether the evidence was relevant and whether its prejudicial impact outweighed its probative value. The Court ultimately made orders regarding the application for leave to appeal.
Orders
Orders of the court
See [46]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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