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R v BC (No 3)

R v BC (No 3)

Case [2020] ACTCA 49 3 August 2020

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	R v BC (No 3)
Citation:	[2020] ACTCA 49
Hearing Date:	3 August 2020
DecisionDate:	3 August 2020
ReasonsDate:	30 October 2020
Before:	Mossop, Loukas-Karlsson, and Abraham JJ
Decision:	Appeal allowed
Catchwords:	CRIMINAL LAW – Interlocutory appeal – Admissibility of evidence – whether evidence of admitted offending admissible as tendency evidence – whether probative value of evidence substantially outweighed prejudicial effect
Legislation Cited:	Crimes Act 1900 (ACT) ss 55(2), 61(1) Evidence Act 2011 (ACT) ss 97, 101, 135, 137
Cases Cited:	BC v R [2019] NSWCCA 111 DPP (NSW) v RDT [2018] NSWCCA 293 Festa v The Queen [2001] HCA 72; 208 CLR 593 Gilbert v The Queen [2000] HCA 15; 201 CLR 414 Glennon v The Queen (1992) 173 CLR 592 HML v The Queen [2008] HCA 16; 235 CLR 334 House v The King (1936) 55 CLR 499 Jackson v R [2020] NSWCCA 5 Kadir v The Queen [2020] HCA 1; 94 ALJR 168 Lodhi v The Queen [2007] NSWCCA 360; 179 A Crim R 470 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 R v BC (No 2) [2020] ACTCA 24 R v SK [2011] NSWCCA 292 R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 Sidaros v The Queen [2020] ACTCA 11 Vagg v R [2020] NSWCCA 134 Vojneski v The Queen [2016] ACTCA 57 Warren v Coombes (1979) 142 CLR 531
Parties:	The Queen (Appellant) BC (Respondent)
Representation:	Counsel T Hickey (Appellant) J O’Keefe (Respondent)
Solicitors ACT Director of Public Prosecutions (Appellant) Tu’ulakitau McGuire (Respondent)
File Number:	ACTCA 61 of 2019
Decision under appeal:	Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 13 December 2019 Case Title: R v BC Citation: [2019] ACTSC 391

THE COURT:

Introduction

On 3 August 2020 the Court made the following orders:

(a)Appeal allowed.
(b)The order made by the court on 13 December 2019 is set aside and the following order made: The Crown is permitted to adduce evidence as tendency evidence outlined as Incidents 1-9 set out in the Notice of Intention to Adduce Tendency Evidence dated 7 November 2019 as tendency evidence pursuant to s 97 of the Evidence Act 2011 (ACT) (Evidence Act) to prove that the accused had a tendency to act in a particular way and to have a particular state of mind as described in the notice.

The Court indicated at that time that reasons would be published at a later date. The reasons follow.

This was an appeal against an interlocutory decision of a judge of the Court.

Because of its interlocutory nature, leave to appeal was required. Leave was granted on 5 February 2020 by Loukas-Karlsson J: see R v BC (No 2) [2020] ACTCA 24

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 3)

Details

AGLC: R v BC (No 3) [2020] ACTCA 49
Case: [2020] ACTCA 49
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, constituted by Mossop, Loukas-Karlsson, and Abraham JJ, heard an interlocutory appeal concerning the admissibility of tendency evidence in a criminal trial. The appeal was brought by the Crown against a pre-trial ruling by a judge of the Court. The accused faced multiple charges of committing acts of indecency and sexual intercourse with a young person, all involving the same complainant, and had pleaded guilty to a further related charge. The Crown sought to adduce evidence of nine specific incidents as tendency evidence to prove the accused's propensity to act in a particular way and to have a particular state of mind.

The central legal issues before the Court were whether the primary judge erred in excluding one of the proposed tendency incidents (Incident 8, the conception incident) and whether the probative value of this evidence was substantially outweighed by its prejudicial effect. Specifically, the grounds of appeal challenged the primary judge's findings that the accused's inability to deny Incident 8 constituted unfair prejudice, that its admission would impair the accused's defence, and that its probative value was outweighed by its prejudicial effect. The Court also considered the appropriate standard of appellate review for rulings made under section 101(2) of the *Evidence Act 2011* (ACT), noting the unsettled nature of whether a "correctness" standard or the principles in *House v The King* applied.

The Court determined that regardless of the standard of review applied, the primary judge had erred. The Court reasoned that the inability of the accused to deny Incident 8 did not, in itself, constitute unfair prejudice under section 101(2) of the *Evidence Act*. Furthermore, the Court found that the admission of Incident 8 would not impair the accused's ability to conduct his defence. Applying the correctness standard, the Court concluded that the probative value of the conception incident substantially outweighed any prejudicial effect it might have. The Court also found that a *House v The King* error had been demonstrated.

Consequently, the Court set aside the primary judge's order and made a new order permitting the Crown to adduce the evidence of Incidents 1-9 as tendency evidence pursuant to section 97 of the *Evidence Act 2011* (ACT) to prove the accused's tendency to act in a particular way and to have a particular state of mind as described in the Crown's notice.

Orders