Tully v The Queen

The appeal in *Tully v The Queen* was heard by Murrell CJ, Penfold and North JJ of the Supreme Court of the Australian Capital Territory. The appellant, Tully, was convicted on multiple counts of sexual offences. The appeal concerned the admissibility and use of certain evidence, the alleged incompetence of trial counsel, and whether the verdicts returned by the jury were unsafe and unsatisfactory.

The central legal issues before the Court of Appeal were: (1) whether the trial judge erred in admitting evidence of alleged prior sexual misconduct by the appellant as tendency evidence, and if so, whether this evidence possessed sufficient probative value to outweigh its prejudicial effect; (2) whether the trial judge erred in refusing to grant separate trials for the different counts; (3) whether the appellant's trial counsel was so incompetent as to render the trial unfair; and (4) whether, in light of these issues, the verdicts of guilty were unsafe and unsatisfactory.

The Court of Appeal found that the evidence of prior sexual misconduct, admitted as tendency evidence, did not have sufficient probative value to justify its admission, particularly given its highly prejudicial nature. The Court reasoned that the evidence did not establish a sufficient degree of relevance to the charges before the jury, and its admission risked the jury convicting the appellant based on a propensity to commit such offences rather than on the evidence relating to the specific charges. The Court also considered the cumulative effect of admitting this evidence and the refusal to grant separate trials, concluding that these factors, when viewed together, rendered the verdicts on certain counts unsafe and unsatisfactory. The alleged incompetence of counsel was also considered, but the Court found it did not independently establish grounds for appeal.

Consequently, on Counts 1, 2, 3 and 5, the appeal was allowed, the verdicts and consequent orders were set aside, and verdicts of not guilty were entered. The appeal was otherwise dismissed.