Thursday, March 31, 2011

"Irrationally generous"

Yesterday the High Court handed down its decision in Stubley v Western Australia [2011] HCA 7, which concerns the admissibility of tendency evidence (or, as WA calls it, propensity evidence) or relationship evidence in a sexual offence proceeding. The case, in broad terms, is fairly straightforward. Several years after ceasing treatment, 2 women alleged that their psychiatrist, Stubley, had sexual intercourse with them during therapy sessions. They claimed that they either actively communicated their lack of consent, or that their acquiescence was not consent, but was improperly induced by threats and other misconduct. The prosecution sought to lead evidence from 3 other women who also alleged that Stubley had sexual intercourse with them in the context of a professional-client relationship. The defence case did not dispute the allegations of sexual intercourse, but relied on consent or belief in consent. The defence denied that consent was obtained by threats.

Tuesday, March 22, 2011

More unenthusiasm for interlocutory appeals

Finn v R [2011] VSCA 68 continues the general trend of the Court of Appeal discouraging the routine use of interlocutory appeals. This time, the appellant sought to challenge a decision admitting evidence of statements by a deceased under s65(2)(b) of the Evidence Act 2008.

Thursday, March 10, 2011

Lies and videotapes

For several years, consciousness of guilt has posed serious problems for Victorian trial judges. While the theory behind consciousness of guilt is arguably just common sense (a person who lies about important matters or engages in other incriminating conduct, like attempting to flee the State after an alleged offence may be more likely to be guilty of that offence) the reasons for the problems numerous and arguably a predictable result of the current state of the law:
  • The directions required are long and complex, requiring precise identification of each separate piece of evidence and requires the judge to suggest other explanations for the lie or other evidence.
  • The Court of Appeal has been incredibly vigilant for the slightest slip
  • Prosecutors, concerned about the directions leaving the jury confused or considering the issue too hard and just setting the evidence to one side, may eschew reliance on consciousness of guilt reasoning
  • Defendants, concerned that extensive directions on the topic would give it unwarranted prominence, encourage prosecutors and judges to eschew reliance on full consciousness of guilt directions
Johnstone v R [2011] VSCA 60 is then merely the latest in the long line of cases where consciousness of guilt evidence has brought a trial undone.

Wednesday, March 2, 2011

New Criminal Appeal rules

The Court of Appeal has released a new practice statement on criminal appeals, following amendments to Chapter VI of the Supreme Court Rules. These amendments follow what seemed to be a short consultation process in the last weeks of December last year.