Matthews (a pseudonym) v The King

In the matter of Matthews (a pseudonym) v The King, the Court of Appeal was called upon to review an interlocutory decision relating to the admissibility of tendency evidence in a criminal trial involving serious sexual assault charges. The appeal centred on the contention that evidence of the complainants' past sexual behaviour was relevant to demonstrate their sexual interest and willingness to act on that interest, and whether such evidence had significant probative value and whether any prejudicial effect could be remediated by jury direction.

The legal issues at the core of the appeal were whether the tendency evidence proposed by the prosecution met the criteria set out in the Evidence Act 2008, specifically whether the evidence had significant probative value and whether this value substantially outweighed any prejudicial effect on the accused. The court had to consider the two-step test for determining significant probative value and whether the probative value substantially outweighed the prejudicial effect, as articulated in Hughes v The Queen and Phillips v The Queen.

The Court of Appeal, comprising Kirou, Kennedy and Kaye JJA, upheld the trial judge's decision, finding that the proposed tendency evidence did not meet the statutory requirements. The court held that the evidence did not sufficiently support the tendency or make the facts of the charged offence more likely. The court further found that any prejudicial effect of the evidence could not be sufficiently remediated by jury direction. Accordingly, the court granted leave to appeal but affirmed the interlocutory decision.

No further orders were made by the Court of Appeal in this interlocutory appeal.