K J M v The Queen [2011] VSCA 151

2 It is unnecessary to rehearse the categories of evidence sought to be relied on. Having heard pre-trial argument, Bell J ruled on 3 May 2011 that the evidence, with certain exceptions, was admissible as tendency evidence.

3 The applicant has sought leave to appeal pursuant to s 295 of the Criminal Procedure Act 2009 against that interlocutory decision. The proposed grounds of appeal are in the following terms:

1. The evidence sought to be adduced is not significantly probative of any fact in issue;
2. The probative value of the evidence sought to be adduced does not substantially outweigh its prejudicial effect; or alternatively, it was not open for the judge to conclude that the evidence sought to be adduced substantially outweighed its prejudicial effect.

4 In our view, this application for leave is premature. His Honour was asked to rule on the admissibility of this evidence on an interim basis. As counsel for the applicant has acknowledged before us this morning, his Honour was asked to rule on admissibility on the assumption that the evidence of the witnesses the Crown proposes to call was uncontested.

5 It seems to us, with respect, that it was very helpful to the parties, and in particular to the defence, to have his Honour give an interim ruling of that kind. His Honour indicated his view about the admissibility of the evidence, and the basis of its admissibility, taking the evidence at its highest. But, as is apparent from the transcript of the discussion between the Bench and counsel this morning (which will be provided to the parties and his Honour in conjunction with these reasons), the evidence will not be uncontested. On the contrary, defence counsel has made clear that there will be vigorous challenge to a number of aspects of the evidence. The debate this morning has concentrated on the category of evidence proposed to be given by a former partner of the defendant/applicant. As was made clear in discussion, it seems to us that there is a range of issues which are likely to be explored - and defence counsel indicates that they will be explored - both about the particular incidents alleged and, just as importantly, about the context of the relationship in which these incidents are alleged to have occurred.

6 His Honour referred in his rulings to the question of proximity, that is, temporal proximity. The exchanges with counsel have, however, confirmed that there are many other aspects of those allegations which will need to be investigated on the voir dire before any final answer can be given to the statutory question under s 101(2) of the Evidence Act 2008 (Vic), namely, whether 'the probative value of the evidence substantially outweighs any prejudicial effect it may have'. That is the critical question ultimately.

7 For the assistance of the parties, his Honour has decided that question on this interim - and necessarily artificial - basis. But we think it inappropriate for this Court to embark on deciding whether that interim view is correct or not. To do so would be, to put it bluntly, a waste of this Court's time. Whatever view we might express about the interim ruling, the only ruling that matters is the one his Honour will in due course make after hearing the evidence tested on the voir dire.

8 Defence counsel has indicated that there may well be other witnesses he would wish to call in relation to the incidents said to have occurred during the previous relationship. That, by itself, demonstrates how much is yet to be determined about how this evidence is to be viewed.

9 Both counsel have, in the course of argument, expressed agreement that this is, in truth, just the beginning of the consideration of admissibility of this evidence. Ultimately, it was common ground that this Court ought not embark on the consideration of the application which has been filed.

10 The application will be adjourned to 30 June 2011, at which time the parties will be expected to indicate the progress of the matter. As Ms Williams said, depending on how events play out the Crown may well have occasion to review its own position. But, in order for this not to be lost sight of in the Court of Appeal, we would expect at least an indication through the Registry by 30 June 2011 of what is happening with the matter. If the application is ultimately not pressed, it can be disposed of administratively.