R v BC - [2019] ACTSC 391

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v BC
Citation:	[2019] ACTSC 391
Hearing Date:	13 December 2019
DecisionDate:	13 December 2019
Before:	Elkaim J
Decision:	See [10]
Catchwords:	CRIMINAL LAW – EVIDENCE – Pre-Trial Application – Application to adduce tendency evidence – uncharged acts – temporal issue – probative value – prejudice to accused
Legislation Cited:	Evidence Act 2011 (ACT) ss 97 and 101
Cases Cited:	McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 R v Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846 R v EUC [2019] ACTSC 185
Parties:	The Queen (Crown) BC (Accused)
Representation:	Counsel S Janackovic (Crown) J O’Keefe (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) John O’Keefe (Accused)
File Numbers:	SCC 192 of 2019; SCC 193 of 2019; SCC 194 of 2019

ELKAIM J:

This is an application to adduce tendency evidence dated 8 November 2019 and supported by an affidavit of Ms Elizabeth Wren affirmed the same date.

The application is opposed. The affidavit sets out the details of nine incidents which the Crown seeks to use to establish the tendency of the accused. The specific tendencies alleged are that the accused has a sexual interest in his cousin, LC, and that he has a tendency to act on that sexual interest.

Mr O'Keefe, who appears for the accused, has provided me with written submissions in which he sets out the basis for his opposition. I think I can separate the opposition into two areas. The first has two parts. Firstly, that the incidents include uncharged acts and secondly, that the incidents include acts against the complainant when she was 8 being used to support acts against her when she was 15 and vice versa.

Dealing first with the uncharged acts. There was a time when uncharged acts were unfavourably looked upon as supporting tendency applications. That time has passed and it is clear that recent High Court authority is to the contrary.

The second part relates to the temporal separation between ages 8 and 15. Mr O'Keefe has submitted that to allow the tendency as between acts where there is that sort of temporal gap would be contrary to the decision of the High Court in McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045.

The Crown has referred me to a decision of Burns J in this Court in the matter of R v EUC [2019] ACTSC 185. As Mr O'Keefe pointed out, if it is between the authority of the High Court and Burns J, the High Court wins. However it is clear that Burns J has himself relied on High Court authority, namely the matter of R v Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846.

It also seems to me that the judgement of his Honour, in particular at [22] and [23], show that there is no reason why the period of time should be significant to the application. I would…

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 BC

Details

AGLC: R v BC [2019] ACTSC 391
Case: [2019] ACTSC 391
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of R v BC was heard by Elkaim J on 13 December 2019. The Crown, represented by Counsel S Janackovic, sought to adduce tendency evidence to establish the accused's, BC, alleged sexual interest in his cousin, LC, and tendency to act on that interest. The application was opposed by BC, represented by J O’Keefe. The legal issues the court had to determine were whether the proposed evidence, which included uncharged acts and acts against the complainant at different ages, was admissible under the Evidence Act 2011 (ACT) sections 97 and 101, and whether its prejudicial effect outweighed its probative value.

Elkaim J began by addressing the accused's argument that the proposed evidence included uncharged acts. The court acknowledged that uncharged acts were previously viewed unfavorably but noted that recent High Court decisions, such as McPhillamy v The Queen and R v Bauer (a pseudonym), have shifted this perspective. The court also considered the temporal gap between the alleged acts at different ages, citing the High Court's decision in McPhillamy v The Queen. However, Elkaim J concluded that the temporal gap was not significant due to the same complainant being involved in both instances. Elkaim J further addressed the accused's concern about the conception incident, an incident to which the accused had already pleaded guilty. The court found that the prejudicial effect of this evidence significantly outweighed its probative value, as it would impair the accused's capacity to conduct his defence. Despite this, Elkaim J noted that there was significant evidence against the accused, even without the conception incident.

The court granted the Crown's application to adduce tendency evidence, with the exception of Incident 8. Elkaim J's decision was based on the probative value of the evidence and its relevance to the accused's tendency to act on his alleged sexual interest in his cousin. The court's reasoning demonstrates the importance of balancing the admissibility of tendency evidence with the potential prejudicial effect on the accused, as well as the need to consider recent High Court decisions in this area of law.

Orders