R v BC (No 3)

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.