R v Mullins - [2016] ACTSC 230

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Mullins
Citation:	[2016] ACTSC 230
Hearing Date:	18 August 2016
DecisionDate:	18 August 2016
Before:	Elkaim J
Decision:	(i) The Crown’s application to rely on evidence of the respondent’s previous conviction in 2008, pursuant to s 97 of the Evidence Act 2011 (ACT), is rejected. (ii) The evidence supporting each of the first 15 counts, being annexures to the affidavit of the respondent sworn and filed on 19 September 2003, may be used by the Crown as tendency evidence under s 97 of the Evidence Act 2011 (ACT) in support of every other of Counts 1 to 15, besides the count to which the evidence is expressly relevant. (iii) The Crown is granted leave to adduce evidence from a suitably qualified person as to the following: (a) A letter of complaint was lodged by Mr Marina on 18 August 2003. (b) Mr Gaskill was commissioned to prepare a report into the letter of complaint. (c) Mr Gaskill produced a report dated May 2004. (d) The report does not include any mention or reference to the letter relied upon in support of Count 6 nor does it mention the meeting or incident referred to in the letter.
Catchwords:	CRIMINAL LAW – EVIDENCE – Tendency Evidence – application to adduce – s 97 Evidence Act 2011 (ACT)
Legislation Cited:	Evidence Act 2011 (ACT), ss 97, 101, 137, 192A
Cases Cited:	El-Haddad v R [2015] NSWCCA 10; 88 NSWLR 93 IMM v The Queen [2016] HCA 14; 257 CLR 300 R v Harker [2004] NSWCCA 427 R v Zhang [2005] NSWCCA 437; 227 ALR 311
Parties:	The Crown (Applicant) Mark Patrick Mullins (Respondent)

Representation:

Counsel

A Williamson (Applicant)

R Rajalingham (Respondent)

Solicitors

ACT Director of Public Prosecutions (Applicant)

Nyman Gibson Miralis (Respondent)

File Number:

SCC 73 of 2016

ELKAIM J:

The respondent is due to face a trial in this court in respect of 16 counts in an indictment dated 27 May 2016. 15 of the counts allege the use of a false document with the intention of inducing another person to accept it as genuine thus influencing the exercise of a public duty. The remaining count concerns the use of false evidence to influence a legal proceeding.

On 19 July 2016 the Crown lodged a Notice of intention to adduce tendency evidence. Amended particulars of the alleged tendencies were filed in court today.

Also on 19 July 2016 the Crown filed an Application seeking orders under s 192A of the Evidence Act2011 (ACT) that it be permitted to adduce tendency evidence in accordance with the above tendency notice.

The Application also seeks leave to adduce in evidence a witness statement and a report prepared by a Mr Gaskill. This person is now deceased.

Returning to the tendency evidence, it may be seen to fall into two parts. Firstly, there is the evidence of a conviction of the respondent in 2008. This conviction arose from the use…

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 Mullins

Details

AGLC: R v Mullins [2016] ACTSC 230
Case: [2016] ACTSC 230
Decision Date: 18 August 2016

CaseChat Overview and Summary

In the matter of R v Mullins, the court was presented with a dispute regarding the admissibility of evidence concerning the respondent’s previous conviction under section 97 of the Evidence Act 2011 (ACT). The Crown sought to use this evidence to support multiple counts of the indictment against the respondent. The respondent contested the Crown's application, arguing that the evidence was not admissible under the relevant provisions of the Act.

The primary legal issue before the court was whether the Crown could rely on the respondent's 2008 conviction to adduce tendency evidence in relation to counts 1 to 15 of the indictment. The court had to consider the parameters set by section 97 of the Evidence Act 2011 (ACT) and assess whether the evidence of the previous conviction was relevant and admissible under the legislation. Additionally, the court needed to determine if the evidence of a complaint letter and a report prepared by Mr Gaskill could be admitted.

The court ruled that the Crown’s application to use the respondent’s previous conviction as evidence was rejected because it did not meet the criteria set out in section 97 of the Evidence Act 2011 (ACT). However, the court allowed the evidence supporting the first 15 counts, as outlined in the annexures to the respondent’s affidavit, to be used as tendency evidence for all counts except for the count to which it was expressly relevant. The court also granted the Crown leave to adduce evidence regarding a complaint letter and the subsequent report by Mr Gaskill, clarifying that the report did not mention the letter or the incident it referenced.

Orders

Orders of the court

(i) The Crown’s application to rely on evidence of the respondent’s previous conviction in 2008, pursuant to s 97 of the Evidence Act 2011 (ACT), is rejected.

(ii) The evidence supporting each of the first 15 counts, being annexures to the affidavit of the respondent sworn and filed on 19 September 2003, may be used by the Crown as tendency evidence under s 97 of the Evidence Act 2011 (ACT) in support of every other of Counts 1 to 15, besides the count to which the evidence is expressly relevant.

(iii) The Crown is granted leave to adduce evidence from a suitably qualified person as to the following:

(a) A letter of complaint was lodged by Mr Marina on 18 August 2003.

(b) Mr Gaskill was commissioned to prepare a report into the letter of complaint.

(d) The report does not include any mention or reference to the letter relied upon in support of Count 6 nor does it mention the meeting or incident referred to in the letter.

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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