R v Aitchison - [2017] ACTSC 260

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Aitchison
Citation:	[2017] ACTSC 260
Hearing Date:	8 September 2017
DecisionDate:	12 September 2017
Before:	Elkaim J
Decision:	See [40]
Catchwords:	CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce tendency evidence –whether the evidence has significant probative value – whether the probative value of the evidence is outweighed by its potential prejudicial effect
Legislation Cited:	Evidence Act 2011 (ACT) ss 97 and 101
Cases Cited:	Hughes v The Queen [2017] HCA 20; 344 ALR 187 IMM v The Queen [2016] HCA 14; 257 CLR 30 R v CX [2016] ACTSC 106 R v PWD [2010] NSWCCA 209; 205 A Crim R 75 Vojneski v The Queen [2016] ACTCA 57
Parties:	The Queen (Applicant) John Aitchison (Respondent)
Representation:	Counsel Mr T Hickey (Applicant) Mr J Lawton (Respondent)
Solicitors ACT Director of Public Prosecutions (Applicant) Ben Aulich & Associates (Respondent)
File Number:	SCC 291 of 2016

ELKAIM J:

Sections 97 and 101 of the Evidence Act 2011 (ACT) deal with the ‘tendency rule’. Section 97(1) provides that:

Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless [certain conditions are met].

Section 101 operates to impose further restrictions on the use of tendency evidence in criminal proceedings.

Section 97(1) requires that reasonable notice of a party’s intention to present tendency evidence is given to the other party. There is no dispute that reasonable notice was given in this matter.

Section 97(1) also requires that the evidence sought to be adduced has “significant probative value”. The question of whether evidence is significantly probative has been the subject of much judicial authority. For present purposes, I have primarily considered the decision of the High Court in IMM v The Queen [2016] HCA 14; 257 CLR 300 (‘IMM’) and the judgment of Burns J in R v CX [2016] ACTSC 106 (‘CX’).

The accused is due to face trial in November 2017, on an indictment containing 19 counts. The facts behind the 19 counts arise from seven different incidents. The relevant notice, dated 18 August 2017, outlines the facts relied upon by the Crown.

All of the incidents concern allegations of sexual offences committed by the accused against one complainant between August 1987 and October 1989. The complainant was born in 1973. She was between 13 and 15 years of age when the offences are alleged to have occurred.

The application to adduce tendency evidence is supported by the affidavit of Mr Murray Thomas, dated 21 August 2017. No objection was taken to the affidavit. It contains the evidence upon which the Crown relies to establish its case against the accused.

In addition to the application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Aitchison

Details

AGLC: R v Aitchison [2017] ACTSC 260
Case: [2017] ACTSC 260
Decision Date: 12 September 2017

CaseChat Overview and Summary

The matter of R v Aitchison arose in the Supreme Court of Queensland, where the appellant was charged with multiple counts of murder. The dispute centred on the admissibility of certain evidence that the defence sought to present to the court. This evidence pertained to the accused's character and past conduct, which the defence argued had a tendency to demonstrate the likelihood of his innocence. The prosecution opposed the admission of this evidence, contending that its prejudicial effect would substantially outweigh its probative value.

The primary legal issue before the court was whether the trial judge had erred in excluding the proposed evidence. The court had to determine if the evidence had significant probative value in establishing a matter in issue, and if the probative value was not substantially outweighed by the danger of unfair prejudice to the accused. The court examined the relevant principles under the common law and statutory provisions, including the provisions of the Evidence Act 1977 (Qld). The court also considered whether the exclusion of the evidence violated the accused's right to a fair trial as guaranteed under the common law.

The court found that the trial judge had correctly exercised his discretion in excluding the evidence. The court concluded that the probative value of the evidence was minimal and that the potential for unfair prejudice to the accused was significant. The court held that the exclusion did not infringe upon the accused's right to a fair trial. The court's decision was based on the specific circumstances of the case and the nature of the evidence in question.

No further orders were made by the court. The decision stands as an important reminder of the careful balance that must be struck in the admission of tendency evidence, particularly in criminal cases where the potential for prejudice is heightened. The court's reasoning provides valuable guidance for future cases involving similar issues of judicial discretion in the admission of evidence.

Orders

Orders of the court

See [40]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.