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[2015] VCC 1651
County Court of Victoria
2015-11-16
Original judgment source is linked above.
Ruling: Application granted in respect of alternative Crown position - Relevant circumstantial evidence
1 This is a ruling in respect of the prosecution's application to adduce as tendency evidence (evidence that Fiona McCormick would give) that it was the accused's practice to access a cloth from his bedside table after sexual activity with her, in order to clean up his ejaculate, as evidence which tends to support the complainant's allegation that on an occasion after the accused licked her on the vagina, he used a cloth from his bedside table to wipe her vagina.
2 Mr Hannan argued in the alternative that evidence that the accused kept cloths in his bedside table was evidence that was circumstantial in nature and which tended to support the complainant's credibility and reliability when she said that the accused used a cloth from his bedside table to wipe her vagina, on the occasion which gives rise to Charge 1.
3 Upon reflection, the secondary submission of Mr Hannan has some force. It seems to me that the central probative force of evidence which could be adduced from Ms McCormick is the fact of the accused keeping cloths in his bedside table drawer at a time which was fairly proximate, as I understand the position, to the alleged sexual misconduct toward the complainant which is the subject of Charge 1.
4 Although Ms McCormick would say that the accused used a cloth after sexual activity with her, I regard this aspect as being somewhat to the use that the complainant said was used for in her case, albeit that it was in the context of sexual activity. Therefore, I do not regard the evidence which is sought to be relied on as tendency evidence as having sufficient probative value to qualify as such, given the higher threshold for admissibility.
5 However, I accept that the evidence, if confined to the accused keeping cloths in his bedside table when in a relationship with Ms McCormick, as being relevant circumstantial evidence, which tends to support the credibility and reliability of the evidence of the complainant, insofar as her account of what transpired on the occasion of Charge 1 is concerned.
6 Having reviewed the relevant paragraph of Ms McCormick's statement, police statement and having reviewed the evidence of Mr Fisher, I'm not of the view that the quality of Ms McCormick's evidence would be so lacking in its reliability (or credibility for that matter) as to be inadmissible.
7 Mr Fisher did have to raise the particular topic with Ms McCormick and he gave evidence as to his best recollection as to what was said. He agreed that he was rather specific about what he asked her, but he was not so specific so as to deprive the evidence of any probative worth.
8 Ms McCormick gave information which coincides with the evidence of the complainant in this trial, but she also gives details which are not identical to the complainant's account as to what she alleges occurred on the occasion of Charge 1.
9 Any prejudicial value of such evidence is directly linked to its probative worth in my view and I do not regard this evidence as possessing unfair prejudice, so as to result in its exclusion. As Mr Hannan argued, it will be open to defence to cross-examine the informant and/or Ms McCormick if they wish, in respect of what was said to her, 'axes to grind' and the like.
10 Further, the jury will be instructed, as to the way in which the evidence is relied upon by the prosecution and they will be warned against speculation, if indeed they accept the evidence from Ms McCormick at all.
DPP
Duane Furness