MM v The Queen

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.