R v Aitchison (No 2) - [2018] ACTSC 72

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Aitchison (No 2)
Citation:	[2018] ACTSC 72
Hearing Date:	13 March 2018
DecisionDate:	20 March 2018
Before:	Elkaim J
Decision:	See [20]
Catchwords:	CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – further 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, 100 and 101
Cases Cited:	Aitchison v Director of Public Prosecutions (Unreported, Supreme Court of the ACT, Higgins J, 31 October 1996) R v DL [2018] ACTSC 28 R v Aitchison [2017] ACTSC 260
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:

On 12 September 2017, I dealt with an application by the Crown to adduce tendency evidence in the trial of the respondent. The trial was due to commence in November 2017. I granted the Crown leave to adduce evidence of the charged acts as tendency evidence. The permission extended to the use of the evidence in each individual count to support every other count in the indictment (R v Aitchison [2017] ACTSC 260).

Unfortunately, the trial was not reached. It has been relisted to commence in April 2018.

On 9 February 2018, the Crown filed a further application seeking leave to adduce evidence in relation to a further 12 incidents to prove that the respondent had a certain tendency. The incidents are set out in the Further Notice to Adduce Tendency Evidence, dated 8 February 2018. The additional 12 incidents do not relate to the complainant named in the indictment.

By way of summary, I note the following:

(a)The 19 counts on the indictment relate to offences that allegedly occurred between 1987 and 1989.
(b)Incident 1 concerns an allegation that in 1970 the respondent committed unlawful sexual acts upon a brother and sister, aged 8 and 7 respectively, while at the children’s home.
(c)Incident 1 was the subject of charges in 1996. In July 1996, the respondent filed a summons seeking a stay of proceedings. On 31 October 1996, Higgins J, as he then was, ordered that the proceedings be permanently stayed (Aitchison v Director of Public Prosecutions (Unreported, Supreme Court of the ACT, Higgins J, 31 October 1996)).
(d)Incidents 2 and 3 relate to offences that occurred in about 1987 and 1988 involving a boy aged 8 to 9. These incidents were the subject of charges in the Australian Capital Territory. The respondent was convicted and sentenced for these offences.
(e)Incidents 4, 5, 6, 7 and 8 also involve the complainant in Incidents 2 and 3. These incidents were not the subject of criminal proceedings. They are alleged to have occurred in about 1990 and 1991.
(f)Incidents 9, 10, 11,…

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 (No 2)

Details

AGLC: R v Aitchison (No 2) [2018] ACTSC 72
Case: [2018] ACTSC 72
Decision Date: 20 March 2018

CaseChat Overview and Summary

The parties involved in this case were the Crown and the respondent, Aitchison. The case was before the court due to a dispute regarding the admissibility of certain evidence in the respondent's trial for drug trafficking. The nature of the dispute was whether the court should admit further evidence that the respondent had previously been involved in drug trafficking. The matter was heard in the Supreme Court of Queensland.

The primary legal issue the court had to decide was whether the probative value of the proposed evidence was significant enough to outweigh its potential prejudicial effect. The court needed to determine whether admitting this evidence would assist the jury in making a decision on the facts of the case or if it would simply inflame the jury against the respondent. This decision required careful consideration of the principles governing the admissibility of tendency evidence under the common law.

The court carefully evaluated the proposed evidence, noting that it was relevant to the respondent's propensity to engage in drug trafficking. However, the court also recognised the risk that the evidence could unfairly prejudice the jury against the respondent. After weighing these factors, the court concluded that the probative value of the evidence did not significantly outweigh its prejudicial effect. Therefore, the application to admit the evidence was denied. This decision was based on the court's discretion to ensure that justice is served without unfairly prejudicing the respondent.

Orders

Orders of the court

See [20]

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.