R v BC (No 2) - [2020] ACTCA 24

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	R v BC (No 2)
Citation:	[2020] ACTCA 24
Hearing Date(s):	5 February 2020
DecisionDate:	5 February 2020
ReasonsDate:	14 May 2020
Before:	Loukas-Karlsson J
Decision:	See [33]-[35]
Catchwords:	APPEAL – GENERAL PRINCIPLES – Application for leave to appeal from interlocutory orders – tendency evidence – admissibility of tendency evidence relating to facts to which accused has pleaded guilty
Legislation Cited:	Court Procedures Act 2004 (ACT) s 76(3) Evidence Act 2011 (ACT) s 101 Supreme Court Act 1933 (ACT) s 37E
Cases Cited:	Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 House v The King (1936) 55 CLR 499 R v Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846 R v DL [2018] ACTCA 9 Vojneski v The Queen [2016] ACTCA 57 Warren v Coombes (1979) 142 CLR 531
Parties:	The Queen (Applicant) BC (Respondent)
Representation:	Counsel K McCann (Applicant) J O’Keefe (Respondent)
Solicitors ACT Director of Public Prosecutions (Applicant) John O’Keefe Lawyers (Respondent)
File Number(s):	ACTCA 61 of 2019
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 13 December 2019 Case Title: R v BC Citation: [2019] ACTSC 391

LOUKAS-KARLSSON J:

Introduction

The respondent has been charged with 7 counts of committing an act of indecency on a person under 10 years of age and 3 counts of engaging in sexual intercourse with a person under 16 years of age. These charges relate to allegations that he sexually abused his cousin LC who was approximately 6 years younger than himself between 2002 and 2010. His trial was due to begin on 23 March 2020.

On 7 November 2019 the applicant served on the respondent a Notice of Intention to Adduce Tendency Evidence seeking to adduce evidence of 9 incidents.

On 13 December 2019 the applicant’s application to adduce tendency evidence was heard by Justice Elkaim (the interlocutory judge). His Honour made the following orders:

(a) That the Crown be permitted to adduce tendency evidence as outlined in incidents 1 through 7 and incident 9 as set out in the Notice to Adduce Tendency Evidence dated 7 November 2019 to prove that the respondent had a tendency to have a particular state of mind (to have a sexual interest in LC) and to act in a particular way (to act on his sexual interest in LC);

(b) The Crown is not permitted to adduce evidence of incident 8 as set out in the Notice to Adduce Tendency Evidence dated 7 November 2019.

By an application dated 20 December 2019 the applicant sought leave to appeal from those interlocutory orders refusing the applicant’s application to lead evidence of incident 8 as tendency evidence. It also sought that the pre-trial evidence hearing listed on 13 February 2020 be vacated and that the trial of the respondent listed to commence on 23 March be vacated as consequential orders should leave be granted.

The draft grounds of the proposed appeal were…

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 (No 2)

Details

AGLC: R v BC (No 2) [2020] ACTCA 24
Case: [2020] ACTCA 24
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, on appeal, considered an application for leave to appeal from interlocutory orders made by a single judge. The appeal concerned the admissibility of tendency evidence in a criminal trial. The respondent, John O’Keefe, was charged with multiple counts of sexual offences against a minor. The Director of Public Prosecutions sought to adduce evidence of nine incidents as tendency evidence, but the primary judge permitted evidence of seven incidents and one other, while disallowing evidence of incident 8, to which the respondent had pleaded guilty. The Director sought leave to appeal this refusal regarding incident 8.

The central legal issue before the Court of Appeal was whether the primary judge erred in finding that the prejudicial effect of the evidence relating to incident 8 outweighed its probative value, pursuant to section 101 of the *Evidence Act 2011* (ACT). This involved determining the appropriate standard of appellate review for such an interlocutory decision and whether the primary judge had properly conducted the balancing exercise required by section 101, considering the significance of the admitted conduct to the prosecution's case and the potential for unfair prejudice to the respondent. The Court also had to consider whether substantial injustice would result if leave to appeal were refused and whether the case presented exceptional circumstances justifying fragmentation of the trial process.

The Court granted leave to appeal, finding that the primary judge's decision was attended with sufficient doubt to warrant reconsideration. The applicant argued that the judge erred in principle by finding that the respondent's inability to deny incident 8, to which he had pleaded guilty, constituted unfair prejudice. The applicant contended that evidence of admitted conduct, even if similar to charged offences, is not inherently unfairly prejudicial and that juries can be trusted to follow directions. The applicant further submitted that the primary judge failed to adequately assess the significant probative value of incident 8 to the prosecution's case and did not properly engage with the balancing exercise under section 101 of the *Evidence Act*. The respondent argued that the primary judge's decision was a proper exercise of discretion, that the prejudice of admitting evidence of a guilty plea to an unrelated incident would be substantial and could not be cured by directions, and that the prosecution's case would not be fatally weakened by the exclusion of incident 8.

The Court found that the primary judge had erred in principle by treating the respondent's inability to deny incident 8 as a form of prejudice that outweighed its probative value. The Court held that evidence of an admitted act, even if similar to charged offences, is not inherently prejudicial in a way that prevents its admission, and that the risk of a jury misusing such evidence could be managed through directions. The Court concluded that the primary judge failed to properly engage in the balancing exercise required by section 101 of the *Evidence Act*, particularly in assessing the probative value of incident 8 to the prosecution's case and the potential for prejudice. Consequently, the Court allowed the appeal, set aside the primary judge's order refusing to admit incident 8 as tendency evidence, and remitted the matter to the primary judge to determine the admissibility of incident 8 in accordance with the Court's reasons.

Orders