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: | DPP (NSW) v RDT [2018] NSWCCA 293 |
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
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- R v BC (No 3) [2020] ACTCA 49
- Case
- [2020] ACTCA 49
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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