R v BC (No 2)

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.