Director of Public Prosecutions v Brown (a pseudonym)

[2025] ACTSC 51

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Brown (a pseudonym)

Citation: 

[2025] ACTSC 51

Hearing Date: 

19 February 2025

Decision Date: 

25 February 2025

Before:

Christensen AJ

Decision: 

(1)     It is not appropriate to make the advance ruling sought.

(2)     The application in proceeding filed 10 October 2024 is stood over to be determined by the trial judge. 

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –– Pre-trial application – advanced ruling – accused’s application to adduce tendency evidence – relevance of evidence not yet determined – admissibility of evidence used to assert tendency not yet determined – additional evidence may be adduced at trial in relation to tendency reasoning – whether trial judge better suited to decide tendency application – desirability of advance rulings – not appropriate to make advanced ruling sought

Legislation Cited: 

Evidence Act 2011 (ACT) ss 69, 97, 192A

Parties: 

Director of Public Prosecutions ( Crown/Respondent)

Thomas Brown (a pseudonym) ( Accused/Applicant)

Representation: 

Counsel

E Wren (DPP/ Respondent)

S Baker-Goldsmith ( Accused/Applicant)

Solicitors

Director of Public Prosecutions

Bevan & Co ( Accused/Applicant)

File Number:

SCC 163 of 2024

CHRISTENSEN AJ:

Introduction

1․By way of application in proceeding filed 10 October 2024, the accused, being the applicant, seeks an advance ruling to adduce tendency evidence with a view to reliance on tendency reasoning in the trial: ss 97, 192A Evidence Act 2011 (ACT) (Evidence Act).       

2․The prosecution, being the respondent, oppose the application. 

Background

3․The accused is indicted with charges of kidnapping and abduction of a young person relating to the alleged taking of his younger biological brothers in December 2023.  At the time of the alleged taking of the children, from the care of their biological father, the children were subject to court orders that did not permit any unsupervised or overnight contact with their biological mother.  The children’s biological mother is charged jointly with the accused. 

4․During the police investigation, the accused participated in a record of interview.  He is described in the prosecution Case Statement as admitting having taken the children, but claimed that he did so to cause Child and Youth Protection Services (CYPS) to undertake a “proper investigation” into an allegation against the father made by one of the children in August 2023.  In the interview, the accused goes on to describe contended assaults on himself and the children, and the concerns he holds as to the children’s safety as a result.  

The application

5․The applicant seeks the use of evidence contained in documentation that is contended to demonstrate a tendency of the father to engage in acts of violence towards the accused and the children the subject of the alleged kidnapping.  The asserted tendency is “to physically and verbally abuse the accused and his two siblings”.

6․During this pre-trial hearing, the role of the asserted tendency in the trial was crystallised to the effect that the contended tendency, being a predisposition by the father to act in a particular way, was operative on the accused’s mind such that it caused him concern as to the risk to the children’s ongoing and future safety.

7․The evidence intended to be relied upon to establish the asserted tendency is contained in Australian Federal Police case summary documents and CYPS report documentation. The applicant’s position is that this documentation is admissible as a business record pursuant to s 69 of the Evidence Act.  The prosecution oppose admission on this basis. 

Consideration

8․There are a number of issues in determining the application at this stage. 

9․Firstly, the relevance of the evidence relied upon by the applicant to establish the asserted tendency is not yet settled.  The prosecution appears to accept that the evidence may be relevant, and potentially admissible, on a basis other than for tendency purposes.  It is difficult in those circumstances – without clarity as to how the evidence is said to rationally affect the assessment of the probability of the existence of a fact in issue – to assess the significant probative value of the evidence for tendency purposes. 

10․Secondly, the admissibility of the evidence relied upon by the applicant to establish the asserted tendency is not yet settled.  While both parties, not incorrectly, approached the matter on a basis that the Court could determine the application on an assumption of admissibility of the evidence, there is potential futility in determining the application in a circumstance where the evidence may nevertheless be inadmissible.

11․Thirdly, there is a prospect of additional evidence being adduced during the trial that would itself need to be the subject of an application for reliance on tendency reasoning.  Such a circumstance could lead to inconsistent, or uninformed, determinations as to tendency. 

12․This is a matter in which it appears to me to be preferable for it to be determined what the admissible evidence is that will be available for the trier of fact to consider.  No application of that nature is currently before the Court.  In any event, there is potential for evidence relevant to this application that is not capable of being known until the trial.  Either way, the admissibility of the evidence should preferably be considered by the trial judge, with a determination as to the use to be made of the admissible evidence, including whether for tendency reasoning, during the course of the trial. 

Conclusion

13․There can be no doubt that it is preferable that advance rulings or findings be sought and given or made when possible. No criticism is directed at the applicant for seeking to do that in this matter, particularly having regard to the notice requirement in s 97(1)(a) of the Evidence Act for tendency evidence.  However, this is an application that cannot be properly, or sensibly, determined in advance. 

14․It appears to me that this is a matter that would benefit from ventilation of the apparent admissibility issues prior to the trial commencing, but with those issues being determined by the judge who will preside over the trial. In all of the circumstances, per s 192A of the Evidence Act, I am not satisfied that it is appropriate to make the advance ruling sought.

15․Instead, the matter should proceed to the callover, with the Court informed for the purposes of the scheduling of the trial that there are pre-trial rulings required of the trial judge before empanelling occurs.  The filing of an application in proceeding relating to the contended admissibility of the documentation relied upon to establish the tendency would be of benefit for this purpose. 

Orders

16․For those reasons, the orders of the Court are:

(1)It is not appropriate to make the advance ruling sought.

(2)The application in proceeding filed 10 October 2024 is stood over to be      determined by the trial judge. 

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Christensen

Associate:

Date: