The Queen v Mathew Neish [No 1] - [2013] ACTSC 23

THE QUEEN V MATHEW NEISH [No 1]
[2013] ACTSC 23 (7 February 2013)

EVIDENCE – admissibility – tendering evidence – res gestae – “context” evidence – whether admissible – relevance to issues at trial – whether direction should be given.

Evidence Act 2011 (ACT), ss 135, 137

J D Heydon, Butterworths, Cross on Evidence: Australian Edition, vol 1
Andrew Ligertwood and Gary Edmond, Australian Evidence: A Principled Approach to the Common Law and the Uniform Acts (LexisNexis Butterworths, 5^th ed, 2010)

DJV v the Queen (2008) 200 A Crim R 206
FDP v the Queen (2008) 192 A Crim R 87
Festa v the Queen (2001) 208 CLR 593
Harriman v the Queen (1989) 167 CLR 590
O’Leary v the King (1946) 73 CLR 566
Qualtieri v the Queen (2006) 171 A Crim R 463
R v Adam (1999) 106 A Crim R 510
R v Domokos (2005) 92 SASR 258
R v GAE (2000) 109 A Crim R 419
R v Lovegrove [1920] 3 K.B. 643
R v Sotheren (2001) 122 A Crim R 301
R v Yates [2002] NSWCCA 520
Samadi v the Queen (2008) 192 A Crim R 251

EX TEMPORE JUDGMENT

No. SCC 13 of 2012

Judge: Refshauge J
Supreme Court of the ACT

Date: 7 February 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 13 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

THE QUEEN
v
MATHEW NEISH

ORDER

Judge:  Refshauge J
Date:  7 February 2013
Place:  Canberra

THE COURT ORDERS THAT:

The evidence of Sophie Carberry and Morgan Sutton as to words alleged to have been said to them by Mathew Neish may be adduced as context evidence.

No direction be given to the jury immediately prior or after the evidence has been adduced as to the particular case that should be made of the evidence.

THE FACTS

The events that give rise to the accused, Mathew Neish, being charged with recklessly inflicting grievous bodily harm on Thomas De Launey occurred in licensed premises known as the Soul Bar in Woden Square, Woden, ACT, on 15 October 2010.

The evidence, so far led, seems to suggest that an incident occurring between the girlfriend of Mr Neish and the girlfriend of Mr De Launey, who were both present at the premises on that night, led to Mr Neish and Mr De Launey coming together, and resulted in Mr Neish, as is not contested, though the circumstances and legal consequences are very much in issue, punching Mr De Launey.

I am now required to rule on whether certain evidence is admissible. The evidence of Amanda Roy, Mr De Launey’s girlfriend, was that Mr Neish, at some point in the evening, came up to her, and in circumstances where what was said was likely to be heard by Jennifer Boersma, Mr Neish’s girlfriend said to Ms Roy, “I want to suck your tits.”

Ms Roy said she replied, “Do you think I’m stupid? You can’t talk to me like that.” Ms Roy then…

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.

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Details

Case: [2013] ACTSC 23
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of The Queen v Mathew Neish [No 1] [2013] ACTSC 23, heard on 7 February 2013, addresses the admissibility of certain evidence in a trial where Mathew Neish is charged with recklessly inflicting grievous bodily harm on Thomas De Launey. The incident took place at the Soul Bar in Woden Square, Woden, ACT, on 15 October 2010, stemming from an altercation between the girlfriends of Neish and De Launey. The central legal issue revolves around whether evidence of inappropriate and sexually charged comments made by Neish to other women present at the bar, including Sophie Carberry and Morgan Sutton, should be admitted as context evidence to explain the circumstances leading up to the assault. The Crown argued that this evidence is relevant to understanding Neish's state of mind and the events leading to the confrontation, while the defense contended that it lacked probative value and was unfairly prejudicial.

Justice Refshauge ruled that the evidence of comments made by Neish to Carberry and Sutton could be admitted as context evidence. This decision was based on the principle that such evidence helps to set the scene for the incident and provides a principled connection to the events, even if not a factual one. The court noted that this type of evidence, akin to relationship evidence in sexual assault cases, can be crucial for the jury to understand the full context of the events. The judge further determined that the evidence was not unfairly prejudicial, considering the already established sexualised and chauvinistic nature of Neish's conversation that evening. Consequently, the court found that the probative value of the evidence outweighed any prejudicial effect it might have.

The final orders of the court permitted the admission of the contested evidence but deferred the direction to the jury on how to consider this evidence until later in the trial, in response to a request from the defense counsel to avoid emphasizing the evidence prematurely. This decision underscores the court's commitment to balancing the admissibility of relevant evidence with the need to ensure a fair trial for the accused.

Orders