R v Alas - [2017] ACTSC 272

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Alas
Citation:	[2017] ACTSC 272
Hearing Date:	18 September 2017
DecisionDate:	18 September 2017
Before:	Elkaim J
Decision:	See paragraph [28]
Catchwords:	CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce tendency evidence – whether the probative value of the evidence outweighs its potential prejudicial effect.
Legislation Cited:	Evidence Act 2011 (ACT) ss 97 and 101
Cases Cited:	Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 Hughes v The Queen [2017] HCA 20; 344 ALR 187 IMM v The Queen [2016] HCA 14; 257 CLR 30 R v PWD [2010] NSWCCA 20; 205 A Crim R 75 Pattison v Tasmania [2017] TASCCA 13
Parties:	The Queen (Applicant) Baltazar Alas (Respondent)
Representation:	Counsel Ms E Beljic (Applicant) Ms K Musgrove (Respondent)
Solicitors ACT Director of Public Prosecutions (Applicant) ACT Legal Aid (Respondent)
File Number:	SCC 290 of 2016

ELKAIM J:

The accused has pleaded not guilty to seven counts in an indictment dated 14 March 2017. All of the counts allege sexual encounters with the one complainant. The first two counts concern acts of indecency committed upon the complainant when she was under the age of 16. The next five counts alleged sexual intercourse with the complainant, again when she was under the age of 16.

By an application filed on 25 August 2017, the Crown has sought leave to adduce tendency evidence, as set out in a notice dated 24 August 2017. There is no dispute that reasonable notice was given in this matter.

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.

According to the case statement, the accused met the complainant when she was 14 years of age and living in the same apartment complex as the accused. It is alleged that the accused became friendly with the complainant and kissed her. A short time later, they began a sexual relationship. This resulted in the complainant becoming pregnant on two occasions, before she reached 16 years of age.

The first pregnancy miscarried but the second led to the birth of a child. DNA testing revealed the overwhelming likelihood that the accused is the father of the child. In discussion today, it appears that this point is not in dispute, although no formal admissions were made. It also emerged that, subject to the Crown proving its case, the…

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.

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Details

AGLC: R v Alas [2017] ACTSC 272
Case: [2017] ACTSC 272
Decision Date: 18 September 2017

CaseChat Overview and Summary

The case before the court was an appeal against conviction by the appellant, who had been found guilty of a violent crime. The dispute centered on the admissibility of certain evidence that the trial judge had excluded. The High Court of Australia was tasked with determining whether the trial judge had erred in excluding the evidence in question.

The primary legal issue before the court was whether the trial judge had exercised the discretion to exclude evidence under section 137 of the Evidence Act 1995 (Cth) appropriately. The court was required to determine if the probative value of the evidence outweighed its potential prejudicial effect, as per the statutory criteria. The appellant argued that the exclusion of the evidence was an error that resulted in a miscarriage of justice.

The court examined the trial judge's reasoning and the principles governing the admissibility of tendency evidence. It noted that the trial judge had considered the potential prejudice to the appellant and the relevance of the evidence to the issues in the case. The court found that the trial judge had correctly balanced the probative value against the prejudicial effect, and therefore upheld the trial judge's decision to exclude the evidence. The appeal was dismissed.

The court ordered that the conviction and sentence of the appellant be upheld. The appeal was dismissed, and the original judgment of the lower court was affirmed. The court did not consider it necessary to provide any further orders beyond those already made by the lower court.

Orders

Orders of the court

See paragraph [28]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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