R v Baker

[2019] ACTSC 180

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Baker

Citation:

[2019] ACTSC 180

Hearing Date:

8 May 2019

DecisionDate:

8 May 2019

ReasonsDate:

16 July 2019

Before:

Burns J

Decision:

See [1] and [8]-[9]

Catchwords:

CRIMINAL LAW – Application In Proceeding – Tendency evidence – Crown seeking to lead evidence relevant to each charge on indictment as tendency evidence relevant to all charges – application refused – written reasons for decision – consideration of whether the proposed tendency evidence would have significant probative value – whether that probative value would outweigh the prejudicial effect it may have on the accused

Legislation Cited:

Evidence Act 2011 (ACT) ss 97, 101

Cases Cited:

Hughes v The Queen [2017] HCA 20; 92 ALJR 52

Parties:

The Queen (Crown/Applicant)

Brendan Leigh Baker (Accused/Respondent)

Representation:

Counsel

M Keks (Crown/Applicant)

S Boxall (Accused/Respondent)

Solicitors

Commonwealth Director of Public Prosecutions (Crown/Applicant)

Boxall Legal (Accused/Respondent)

File Numbers:

SCC 285 of 2018; SCC 286 of 2018

BURNS J

1. By an application in proceeding dated 18 March 2019, the Crown sought orders permitting it to adduce tendency evidence at the trial of the accused. On 8 May 2019 I refused the application and indicated that I would provide written reasons in due course. These are those reasons.

1. The trial of the accused subsequently took place between 3 June 2019 and 18 June 2019. On the latter date, the jury returned verdicts of guilty to 11 of the 12 counts on the indictment, but were unable to reach agreement with respect to the remaining charge. The jury was discharged after rendering their verdicts. As the accused’s trial has been completed, and verdicts of guilty have been returned on all but one of the charges, the present reasons need not be lengthy or elaborate.

1. The application to adduce tendency evidence was based upon a notice of intention to adduce tendency evidence dated 24 January 2019. In essence, the Crown sought to lead evidence relevant to each charge as tendency evidence relevant to all charges. The tendencies which the Crown sought to prove were:

(a)a tendency on the part of the accused between May 2016 and November 2017 to obtain illicit drugs, namely MDMA (and related drugs), cannabis, methylamphetamine and cocaine, for the purposes of sale; and

(b)a tendency to sell such illicit drugs to persons including Paul McCauley and Bradley Klemke.

1. The Crown submitted that the evidence sought to be admitted as tendency evidence was admissible both as primary evidence on each relevant charge and as relationship evidence generally. It was submitted that the probative value of the evidence sought to be relied upon as tendency evidence substantially outweighed any prejudicial effect it may have on the accused. It was also submitted that the evidence could rationally affect the assessment of the probability of the existence of a fact in issue in relation to the charges involving various dealings with illicit substances, namely that the accused dealt with the relevant illicit drugs and/or had knowledge of the nature of the substance so dealt with. Further, the Crown submitted in relation to charges dealing with the proceeds of crime, evidence tending to show that the accused trafficked in such drugs is probative of the accused’s knowledge that the proceeds were derived or realised from some illegal activity.

1. The accused opposed the application, essentially on the basis that the proposed tendency evidence did not substantially outweigh the potential prejudicial effect of the evidence: s 101, Evidence Act 2011 (ACT). The accused referred me to the decision of the High Court in Hughes v The Queen [2017] HCA 20; 92 ALJR 52, where it was said, at [17]:

…The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.

1. The accused submitted that the jury was likely to be overwhelmed by the nature and number of allegations, all relating to drug activities. He submitted that there was a risk that the jury would impermissibly conflate all the charges into a “single issue” case, namely, whether the accused was involved in illicit drug activity. The accused also submitted that there was a real and unacceptable risk that the jury would be disproportionate in drawing inferences from tendency reasoning, effectively obviating the need for the Crown to prove its case on each charge. Further, he submitted, the emotional response, particularly in a case involving a variety of drug related charges, would cloud the jury’s deliberations, in respect of each individual charge.

1. I was satisfied that the proposed tendency evidence would have significant probative value in the manner put forward by the Crown: s 97(1), Evidence Act 2011 (ACT). Having considered all matters, however, I was not satisfied that the probative value of the evidence substantially outweighed any prejudicial effect it may have on the accused.

1. For this reason I refused the application.

1. As there is a possibility that the accused may yet face a retrial on the charge on which the jury could not reach a verdict, I order that these reasons not be published other than to the parties until further order of the Court.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: 16 July 2019