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NAM v The Queen

NAM v The Queen

Case [2010] VSCA 95 22 April 2010

Appeal

Admissibility of Evidence

Coincidence Evidence

Tendency Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0089

NAM
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BUCHANAN and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 April 2010
DATE OF JUDGMENT:	22 April 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 95

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CRIMINAL LAW – Appeal – Interlocutory appeal – Trial – Severance – Sexual offences – Two complainants – Coincidence evidence – Tendency evidence – Sufficient similarity – Evidence cross-admissible – Appeal dismissed – Evidence Act 2008 (Vic) ss 97, 98, 101.

EVIDENCE – Admissibility – Criminal proceedings – Coincidence evidence – Tendency evidence – Whether sufficient degree of similarity – Whether ‘significant probative value’ – Evidence admissible – Evidence Act 2008 (Vic) ss 97, 98, 101.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr P S Kilduff	TAIT Lawyers

MAXWELL P:

The applicant has been presented for trial on 11 counts of sexual offending concerning two complainants. The complainants, to whom I will refer (as the trial judge did) as ‘TLM’ and ‘JMM’ respectively, are sisters. They are granddaughters of the applicant.

The alleged offences are said to have occurred over a period of some eight years, between June 1996 and June 2004, at times when the complainants were staying with the applicant. During that period JMM was aged between six and a half and 13, and TLM was aged between three and a half and nearly 12.

The prosecution seeks to rely in the trial on tendency and coincidence evidence. For that purpose it gave notices under ss 97(1)(a) and 98(1)(a), respectively, of the Evidence Act2008 (Vic). The applicant sought to challenge the admissibility of that evidence. For that purpose the trial judge conducted a pre-trial hearing at which she heard argument both from defence counsel and the prosecutor as to whether the evidence was admissible.

The questions which arise when there is a challenge to the admissibility of coincidence evidence were set out in CGL v Director of Public Prosecutions.[1] They need not be repeated here. The learned judge correctly set out in her revised reasons the questions which she needed to address in order to decide the issue of admissibility.
[1][2010] VSCA 26 (‘CGL’) [21]–[22].

For reasons which her Honour gave on 14 April 2010, she concluded that the tendency and coincidence evidence was admissible on the basis contended for by the prosecution. In accordance with the new procedures under the Criminal Procedure Act2009 (Vic), the accused has applied to this Court for leave to appeal against that interlocutory decision. His notice of application is dated 19 April 2010. The decision is said to be erroneous because ‘the learned trial judge erred in refusing to sever Counts 4 to 11 of the indictment.’

Given the expectations both of trial courts and of this Court regarding interlocutory appeals, it is important that we have been able to hear this…

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.

Continue reading NAM v The Queen

Details

AGLC: NAM v The Queen [2010] VSCA 95
Case: [2010] VSCA 95
Decision Date: 22 April 2010

CaseChat Overview and Summary

The appellant, NAM, appealed against the decision of the County Court of Victoria to deny his application to sever two sexual offences tried together. NAM was charged with two counts of sexual penetration of a child under the age of 16 years, with one complainant in each count. The trial judge ruled that the evidence of both complainants was cross-admissible and denied NAM's application to sever the charges. NAM appealed to the Court of Appeal of the Supreme Court of Victoria, arguing that the evidence was not sufficiently similar to warrant cross-admissibility.

The key legal issues before the court were whether the evidence of the two complainants was sufficiently similar to warrant cross-admissibility under the Evidence Act 2008 (Vic) and whether the trial judge erred in denying the application to sever the charges. The court had to consider the provisions of sections 97, 98, and 101 of the Evidence Act, which govern the admissibility of evidence of a person's bad character and of similar facts. The court also had to consider the principles of justice and fairness in the administration of criminal justice.

The court held that the evidence of the two complainants was sufficiently similar to warrant cross-admissibility under section 97 of the Evidence Act. The court found that there was a sufficient degree of similarity between the two offences in terms of the nature of the offences, the circumstances in which they were committed, and the relationship between the appellant and the complainants. The court also held that the evidence had significant probative value in relation to the appellant's propensity to commit the offences and that the danger of unfair prejudice did not outweigh the probative value of the evidence. The court further held that the trial judge did not err in denying the application to sever the charges, as the evidence was cross-admissible and the joinder of the charges did not result in a miscarriage of justice.

The appeal was dismissed, and the orders of the County Court of Victoria were upheld. The case serves as a reminder of the importance of considering the principles of justice and fairness in the administration of criminal justice, as well as the need to balance the probative value of evidence against the danger of unfair prejudice. The court's decision also highlights the importance of ensuring that the evidence is sufficiently similar to warrant cross-admissibility under the Evidence Act.

Orders