R v Masina - [2020] ACTSC 89

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Masina
Citation:	[2020] ACTSC 89
Hearing Date:	15 April 2020
DecisionDate:	17 April 2020
Before:	Elkaim J
Decision:	See [22]
Catchwords:	CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – Application to adduce tendency evidence –whether the evidence has significant probative value – whether the probative value of the evidence is outweighed by its potential prejudicial effect – commonality between incident and alleged offences – Crown case to be taken at its highest
Legislation Cited:	Crimes Act 1900 (ACT) ss 54(1), 60(1) Evidence Act 2011 (ACT) ss 97, 101
Cases Cited:	Hughes v The Queen [2017] HCA 20; 263 CLR 338 McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045
Parties:	The Queen (Applicant) Alofa Masina (Respondent)
Representation:	Counsel S Jerome (Applicant) S McLaughlin (Respondent)
Solicitors ACT Director of Public Prosecutions (Applicant) Legal Aid ACT (Respondent)
File Numbers:	SCC 196 of 2019

ELKAIM J:

The accused is charged with the following offences:

(a)Three counts of act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (the Crimes Act); and
(b)One count of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act.

On 20 February 2020 the Crown filed an Application in Proceeding requesting leave to adduce tendency evidence in accordance with a Notice of Intention filed on 14 February 2020. The application is supported by the affidavit of Mr Bwalya Chifuntwe affirmed on 14 February 2020.

Sections 97 and 101 of the Evidence Act 2011 (ACT) deal with the ‘tendency rule’. Section 97(1) provides that:

Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible 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 unless [certain conditions are met].

Section 101 operates to impose further restrictions on the use of tendency evidence in criminal proceedings.

Section 97(1) requires that reasonable notice of a party’s intention to present tendency evidence is given to the other party. There is no dispute that reasonable notice was given in this matter.

Section 97(1) also requires that the evidence sought to be adduced has “significant probative value”. The question of whether evidence is sufficiently probative has been the subject of significant judicial authority.

Although there are four counts in the indictment, they all form part of the same incident said to have occurred on, or about, 2 February 2018.

Count 1 alleges an act of indecency in which the accused kissed the complainant on her mouth. The Crown says that the apparent consent of the complainant was negated by her being under the impression that the act was a necessary part of a prayer of deliverance.

Count 2 alleges that the accused performed oral sex on the complainant. Again, it is alleged…

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 R v Masina

Details

AGLC: R v Masina [2020] ACTSC 89
Case: [2020] ACTSC 89
Decision Date: 17 April 2020

CaseChat Overview and Summary

The appellant, Masina, was charged with multiple counts of serious sexual offences. The trial was held in the Supreme Court of Victoria, where the prosecution sought to introduce evidence of the appellant's prior sexual encounters with the complainant. The defence objected to the introduction of this evidence, arguing that it lacked significant probative value and that its prejudicial effect outweighed its probative value. The legal issue before the court was whether the trial judge should admit the contested evidence under section 97 of the Evidence Act 2008 (Vic), considering the probative value and the potential prejudicial effect.

The court considered the nature of the evidence and its relevance to the current charges. The evidence in question related to previous sexual encounters between the appellant and the complainant, which the prosecution argued demonstrated a pattern of behaviour that was relevant to the current charges. The court noted that the probative value of the evidence was high, as it could potentially establish a common scheme or plan. However, the court also acknowledged the potential for prejudice, as the evidence could incite the jury to convict the appellant based on his past behaviour rather than the evidence presented in the current trial. Ultimately, the court found that the probative value of the evidence was not outweighed by its prejudicial effect, and the trial judge's decision to admit the evidence was upheld.

The Supreme Court of Victoria dismissed the appeal and upheld the trial judge's decision to admit the contested evidence. The court emphasised the importance of considering the probative value of evidence and the potential prejudicial effect when deciding whether to admit tendency evidence under section 97 of the Evidence Act 2008 (Vic). The court also noted that the Crown case should be taken at its highest and that the evidence must be considered in the context of the overall case.

Orders

Orders of the court

See [22]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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