APPEAL AND NEW TRIAL – appeal against conviction – where evidence of relationship between complainant and appellant admitted at trial – whether evidence relevant to facts in issue – whether evidence involved tendency reasoning
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 6 - 2012 No. SCC 335 of 2008
Judges: Penfold, Burns and Jagot JJ Court of Appeal of the Australian Capital Territory Date: 6 November 2012
IN THE SUPREME COURT OF THE) No. ACTCA 6 - 2012 ) No. SCC 335 of 2008 AUSTRALIAN CAPITAL TERRITORY) )
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:MM
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Penfold, Burns and Jagot JJ Date: 6 November 2012 Place: Canberra
THE COURT ORDERS THAT:
The appeal is allowed.
The appellant’s conviction is set aside.
There is to be a…
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.
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Details
AGLC
MM v The Queen [2012] ACTCA 44
Case
[2012] ACTCA 44
Decision Date
CaseChat Overview and Summary
The appeal concerned the admissibility of evidence regarding the relationship between the appellant and the complainant in a sexual assault trial. The appellant argued that certain evidence, admitted at trial, was irrelevant because it could only be used to establish a tendency on the part of the appellant, which the prosecution had disavowed. The court was therefore required to determine whether this disputed evidence was relevant to the facts in issue, or if its admission relied impermissibly on tendency reasoning.
The court considered the fundamental rule of evidence that only relevant evidence is admissible, defining relevance as evidence that could rationally affect the assessment of the probability of a fact in issue. The appellant contended that simply asserting evidence showed "relationship," "background," or "context" was insufficient to establish relevance without a clear articulation of how it avoided tendency reasoning. The court noted that assurances from the prosecution were not enough, and that the disputed evidence must have a demonstrable connection to the facts in issue. In this case, the court found that the evidence of the prior relationship did not explain any actions or inactions of the appellant or the complainant in a way that was relevant to the alleged opportunistic sexual assault, unless it was used to infer a tendency.
The court concluded that the disputed evidence was not relevant to the facts in issue and was therefore inadmissible under section 56 of the Evidence Act 2011 (ACT). The appeal was allowed on this basis.
Orders
Orders of the court
1.
The appeal is allowed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The respondent disavowed the use of any of the disputed evidence for a tendency purpose (that is, evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, used to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind), as set out in s 97 and the Dictionary to the Evidence Act 2011 (ACT) (the Evidence Act). The respondent said: Consistent with this submission the trial judge did not consider the admissibility of the disputed evidence under ss 97 and 101 of the Evidence Act (specifically, the requirement in s 101(2) that tendency evidence about a defendant that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant). Accordingly, the trial judge allowed the evidence to be adduced and gave the following direction to the jury in his summing up: The appellant submitted that the disputed evidence could be relevant to the offence charged only by tendency reasoning. As the respondent had disavowed the use of the disputed evidence for that purpose the evidence was irrelevant and thus inadmissible under s 56 of the Evidence Act which contains the fundamental rule that only relevant evidence (that is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding) is admissible. According to the submissions for the appellant there are some cases, this being one, where the mere assertion that the evidence shows “relationship”, “background” or “context” is insufficient. Rather, there must be a clear articulation of the way in which the evidence is relevant to show that it does not involve tendency reasoning (RG v The Queen [2010] NSWCCA 173 at [34]). Mere assurances from the prosecutor will not suffice (RWC v The Queen [2010] NSWCCA 332 at [130]). These principles are engaged in the present case because there was nothing in what the appellant did or did not do after the incident which might be explained by the disputed evidence insofar as it disclosed the prior relationship between the complainant and the appellant and nor did the complainant suggest that it explained her conduct in any way. On the respondent’s case this was an opportunistic sexual assault by the appellant on the complainant. Accordingly, there was also nothing for the disputed relationship evidence to explain about what the appellant was alleged to have done (not using tendency reasoning). The appellant submitted that, properly analysed, relationship evidence in sexual assault cases is evidence bearing on the credibility of the complainant (WFS v The Queen [2011] VSCA 347 at [87]). There was nothing implausible in the complainant’s account of what occurred, namely, that the appellant took advantage of the fact that he had been permitted to stay the night on the couch after spending time with their son at the complainant’s home by having sex with the complainant while she slept in her bedroom. As the submissions for the appellant put it “it is impossible to understand how the relationship evidence made that allegation more plausible, unless the jury relied on an inferred tendency to have sex with her while she was asleep”.