MAK v The Queen, MSK v The Queen

The applicants, MAK and MSK, sought special leave to appeal to the High Court of Australia against their convictions for murder. The convictions arose from a joint trial in the Supreme Court of New South Wales, where both applicants were found guilty by a jury. The Crown alleged that the applicants had acted in concert to cause the death of the victim.

The central legal issue before the High Court was whether the trial judge had erred in law by admitting evidence of prior convictions of the applicants. Specifically, the applicants argued that this evidence was unfairly prejudicial and should have been excluded under the rules of evidence, particularly concerning the tendency or coincidence of prior criminal conduct. They contended that the admission of this evidence had deprived them of a fair trial.

Kirby J, in his reasons, considered the principles governing the admissibility of evidence of prior convictions. His Honour acknowledged that such evidence is generally inadmissible due to its potential to prejudice the jury against the accused. However, he also recognised that evidence of prior convictions may be admitted if it possesses sufficient probative value to be relevant to a fact in issue, such as establishing a common pattern or modus operandi, or rebutting a defence of accident or innocent association. The critical question was whether the probative value of the evidence in this case outweighed its prejudicial effect.

The application for special leave to appeal was dismissed. Kirby J concluded that the trial judge had properly exercised their discretion in admitting the evidence, finding that it had sufficient relevance to the issues in the trial to justify its admission, and that the jury directions adequately addressed the potential for prejudice.