R v MZ (No 2) - [2021] ACTSC 43

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v MZ (No 2)

Citation:

[2021] ACTSC 43

Hearing Date:

24 March 2021

DecisionDate:

25 March 2021

Before:

Elkaim J

Decision:

See [33]

Catchwords:

CRIMINAL LAW – EVIDENCE – Pre-Trial Application – Scope of subpoena – application to edit or exclude evidence – relevance – capacity to affect probability of facts in issue

Legislation Cited:

Evidence Act 2011 (ACT) s 55

Cases Cited:

MZ v The Queen [2020] ACTCA 41

Parties:

The Queen ( Crown)

MZ ( Accused)

Representation:

Counsel

A Chatterton ( Crown)

M Thangaraj SC with M Jones ( Accused)

J Larkings (Interested Party)

Solicitors

ACT Director of Public Prosecutions ( Crown)

Kamy Saeedi Law ( Accused)

Dobinson Davey Clifford Simpson (Interested Party)

File Numbers:

SCC 318 of 2018; SCC 319 of 2018

ELKAIM J:
1. MZ is due to stand trial in the week commencing 6 April 2021. He is facing an indictment containing one count, namely that he engaged in sexual intercourse with GR without her consent. The offence is alleged to have taken place on 17 August 2018.

2. This will be MZ’s second trial. He first came to trial before Mossop J and a jury on 8 October 2019. On 14 October 2019 the jury found him guilty. On 3 December 2019 Mossop J found MZ guilty of a summary charge that had been transferred from the Magistrates Court.

3. MZ appealed. He said that directions given to the jury were incorrect. The Court of Appeal agreed and directed a retrial (MZ v The Queen [2020] ACTCA 41).

4. There are three matters before me by way of pre-trial application.

5. On 18 March 2021 MZ filed an Application in Proceeding seeking a number of orders, mostly relating to recordings of evidence from the first trial and editing of a record of interview given by MZ on 17 August 2018. The application is supported by an affidavit of Mr James Maher.

6. Orders 1 and 2, sought in the above application, are not opposed by the Crown. Orders 3, 4 and 5 are opposed. The opposed orders relate to the editing of evidence given in the first trial and of the record of interview.

7. There is also an application filed by the Crown on 5 March 2021 seeking an order that a witness be able to give evidence by audio-visual link from China. This application is supported by an affidavit of Ms Harriet Slee affirmed on 5 March 2021.

8. Thirdly, MZ asked the Court to decide on a claim for privilege arising from documents produced under subpoena by a firm of solicitors, Phelps Reid Foster Johnson Lawyers. This request is supported by a separate affidavit of Mr Maher, affirmed on 22 March 2021.

9. I was informed that the Crown’s application had already been agreed between the parties. There is no need for any orders.

10. The subpoena application was dealt with first. Its result to some degree dictated…

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 MZ (No 2)

Details

AGLC: R v MZ (No 2) [2021] ACTSC 43
Case: [2021] ACTSC 43
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, MZ is facing a retrial for allegedly engaging in sexual intercourse with GR without her consent. The initial trial resulted in a guilty verdict, but it was overturned on appeal due to incorrect jury directions. The current case involves three pre-trial applications: an application by MZ to edit certain evidence from the first trial and his police record of interview, an application by the Crown to allow a witness to give evidence via audio-visual link from China, and a claim for privilege over documents produced under subpoena by the complainant's solicitors. The court addressed these applications, focusing primarily on the editing of evidence.

The legal issues before the court involved determining the relevance of certain evidence and whether it should be edited or excluded from the upcoming trial. The court considered whether the evidence of past incidents of sexual intercourse without consent and details of a family violence incident were relevant to the current charge. It also examined whether degrading or insulting statements made by MZ about the complainant and negative statements made by the complainant about MZ were relevant. The court further assessed whether various other examples of evidence were irrelevant.

The court ruled that certain evidence related to past incidents of sexual intercourse without consent and the family violence incident should be excluded. However, the court decided that some evidence indicating antagonism between MZ and the complainant should remain, as it potentially informed the accused's motivation to commit the offence. The court found that the remaining evidence more than sufficiently established the background suggested by the Crown. The court also decided that allegations about the complainant's use of illicit drugs should be excluded, as they did not advance a reason for MZ taking the opportunity to sexually assault his wife.

The final orders of the court included allowing certain edits to the evidence while excluding others, permitting the Crown to provide copies of the recordings to the accused's legal representatives, and directing the solicitor for the complainant to inform the parties of the portion of the documents found to fall within the scope of the subpoena. The court's decision aimed to balance the relevance of the evidence with the need to ensure a fair trial for MZ.

Orders