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R v BI (No 2)

R v BI (No 2)

Case [2016] ACTSC 355 9 December 2016

Jurisdiction

Admissibility of Evidence

Circumstantial Evidence

Unfair Prejudice

Probative Value

Evidence Act 2011 (ACT)

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v BI (No 2)
Citation:	[2016] ACTSC 355
Hearing Date:	29 November 2016
DecisionDate:	9 December 2016
Before:	Refshauge J
Decision:	The evidence of Constable Lief Abraham about the attempted suicide of BI is admissible but only in respect of the offences alleged against OI.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial by jury – historical sexual offences – multiple offences – multiple complainants – multiple charges – act of indecency against a person aged 16 years or below – sexual intercourse with a person aged 16 years or below – incest EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Admissibility of evidence – circumstantial evidence – advance ruling and findings – agitating an issue that may otherwise cause inconvenience in the trial – ‘Edwards lie’ – consciousness of guilt – post-offence conduct – unfair prejudice – probative value outweighed by the danger of unfair prejudice – evidence to be taken at its highest – evidence has substantial probative value – circularity of reasoning – evidence admissible only on the basis that the police were seeking to speak to the accused in respect of allegations involving OI – s 137 of the Evidence Act 2011 (ACT) – s 192A of the Evidence Act 2011 (ACT)
Legislation Cited:	Evidence Act 2011 (ACT), ss 137, 192A
Cases Cited:	Abbosh v The Queen [2011] NSWCCA 265 Edwards v The Queen (1993) 178 CLR 193 Gall v The Queen [2015] NSWCCA 69 IMM v The Queen [2016] HCA 14; 330 ALR 382 Munro v The Queen [2014] ACTCA 11 Papakosmas v The Queen (1999) 196 CLR 297 Pollard v The Queen [2011] VSCA 95; 31 VR 416 Quinlan v The Queen (2006) 164 A Crim R 106 R v BD (1997) 94 A Crim R 131 R v Ciantar [2006] VSCA 263; 16 VR 26 R v Connors (No 2) [2016] ACTSC 333 R v Cook [2004] NSWCCA 52 R v Heyde (1990) 20 NSWLR 234 R v Melrose [1989] 1 Qd R 572 R v MMJ (2006) 166 A Crim R 501 R v Nguyen (2001) 118 A Crim R 479 R v Power and Power (1996) 87 A Crim R 407 R v Smit [2004] NSWCCA 409 R v TR [2004] ACTSC 10; 18 FLR 424 R v Yates [2002] NSWCCA 520
Parties:	The Queen (Crown) BI (Defendant)
Representation:	Counsel Mr A Williamson and Mr S McLaughlin (Crown) Mr M Kukulies-Smith (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Defendant)
File Number:	SCC 64 of 2016

REFSHAUGE J:

The accused, BI, has been charged with 21 offences of a sexual nature against four young people said to have been committed between 1995 and 2012. He has pleaded not guilty to all of the counts on the indictment presented by the Crown.

The jury has been empanelled for the trial, but I have not yet given the jurors the general…

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 BI (No 2)

Details

AGLC: R v BI (No 2) [2016] ACTSC 355
Case: [2016] ACTSC 355
Decision Date: 9 December 2016

CaseChat Overview and Summary

The appellant, BI, was charged with a series of historical sexual offences, including indecent acts and sexual intercourse with a person aged 16 years or below, as well as incest. The case came before the court for a ruling on the admissibility of certain evidence, specifically, an account from Constable Lief Abraham regarding an alleged attempted suicide by BI. The court needed to determine whether this evidence could be admitted and, if so, in what context.

The primary legal issues the court had to resolve were the admissibility of the evidence provided by Constable Abraham, particularly whether it would be unfairly prejudicial to the appellant. The court had to consider the probative value of the evidence against the potential for unfair prejudice, as well as whether the evidence met the threshold for admissibility under the Evidence Act 2011 (ACT). The court also examined the relevance of the evidence to the charges against BI, especially in relation to the complainant OI.

The court found that while the evidence of the attempted suicide was relevant to the charges against OI, it did not have substantial probative value in relation to the other charges. The court noted that the evidence could cause unfair prejudice to BI in respect of the other charges, as it might lead the jury to infer guilt based on consciousness of guilt rather than the evidence presented. The court concluded that the evidence should be admitted only in relation to the offences alleged against OI, as it was necessary to understand the context in which the police were seeking to speak to BI. The court's reasoning was grounded in the need to balance the probative value of the evidence against the risk of unfair prejudice, ultimately deciding that the evidence was admissible in a limited scope.

The court ordered that the evidence of Constable Lief Abraham regarding the attempted suicide of BI be admitted in the trial, but only in respect of the offences alleged against OI. This ruling ensured that the evidence would not unfairly prejudice BI in relation to other charges, while still allowing for its use in the context of the offences against OI.

Orders

Orders of the court

The evidence of Constable Lief Abraham about the attempted suicide of BI is admissible but only in respect of the offences alleged against OI.

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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Citations

AGLC Citation

R v BI (No 2) [2016] ACTSC 355

Most Recent Citation

R v BI (No 3) [2016] ACTSC 356

Cases citing this decision · 6 of 6 shown

Director of Public Prosecutions v Kerry (a pseudonym) (No 7)
[2023] ACTSC 65

…he Queen (1989) 168 CLR 79 Robinson v The Queen [1999] HCA 42; 197 CLR 162 R v Apostilides (1984) 154 CLR 563 R v Atai [2021] ACTSC 157 R v Bl (No 2) [2016] ACTSC 355 R v Cavalli [2010] QCA 343; 206 A Crim R 306 R v FL [2005] QCA 104 R v Garay (No 3) (2021) ACTSC 215 R v Hillier [2007] HCA 13; 228 CLR 618 R v JGW […
Marshall v The King
[2023] ACTCA 11 Para 9

…This passage has repeatedly been cited with approval: see, for example, Willingham v The Queen [2022] SASCA 3 at [88]; R v Bi [2016] ACTSC 355 at [25].…
Director of Public Prosecutions v Kader (No 4)
[2022] ACTSC 287

…R v BI (No 2) [2016] ACTSC 355 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Smith v Jones (pseudonyms) [2017] NSWSC 980…
O'Reilly v Edgar
[2019] QSC 24

…Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16, cited Reid v Dukic [2016] ACTSC 355, cited Rigby v Associated Newspapers Ltd (1969) 1 NSWLR 729, cited Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52, cited Sierocki v Klerck (No 2) [2015] QSC 92, cited Steele v Mirror Newspapers Ltd…
R v Campbell (No 3)
[2019] ACTSC 121 Para 1

…In R v BI (No 2) [2016] ACTSC 355 ( BI (No 2) ), Refshauge J described the relevant principles in relation to consciousness of guilt as follows at [17]-[26]:…
R v BI (No 3)
[2016] ACTSC 356 Para 1

…to whether the evidence of that conviction was to be permitted as a subject of cross-examination, a useful provision for such purposes: R v BI (No 2) [2016] ACTSC 355 at [5]. That is a proper course for the Crown prosecutor to take.…

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Cases cited in this decision · 16 of 16 shown

R v Connors (No 2)
[2016] ACTSC 333 Para 1

…is, of course, circumstantial evidence and so must be addressed by the Court in the same way as other circumstantial evidence. See R v Connors (No 2) [2016] ACTSC 333 at [346]. That, however, is relevant to the way in which the judge must direct the jury and is not directed to the question of admissibility which is…
IMM v The Queen
[2016] HCA 14 Para 1

…wn, submitted that the evidence had significant probative value. The meaning of “probative value” was most recently considered in IMM v The Queen [2016] HCA 14; 330 ALR 382. The following relevant matters were identified. First, the evidence must be relevant, namely, able rationally to affect (directly or indire…
Gall v R; Gall v R
[2015] NSWCCA 69 Para 1

…This approach was followed more recently in Gall v The Queen [2015] NSWCCA 69 at [83]-[86]. Although dealing with lies, these conditions can be applied to different situations where the Crown relies on post-offence conduct as consciousness of guilt.…
Munro v The Queen
[2014] ACTCA 11 Para 1

…nce could lead a jury to use tendency reasoning which is not appropriate. Nevertheless, appropriate directions may reduce the risk: Munro v The Queen [2014] ACTCA 11. If the evidence has a significant impact, beyond its probative value, this may require its rejection. Thus, for example, gruesome photographs in a m…
Abbosh v The Queen; Bene v The Queen
[2011] NSWCCA 265 Para 1

…it on the basis of such speculation. I am fortified in my view by the approach of the New South Wales Court of Criminal Appeal in Abbosh v The Queen [2011] NSWCCA 265, where the Court held that a more limited version of the evidence than that sought to be led by the Crown could be permitted.…
Pollard v R
[2011] VSCA 95 Para 1

…e of witnesses ( R v Smit [2004] NSWCCA 409), flight ( Quinlan v The Queen (2006) 164 A Crim R 106), and the hiding of evidence ( Pollard v The Queen [2011] VSCA 95; 31 VR 416). No doubt there are other examples and many more will be addressed over time in the future.…
R v Ciantar
[2006] VSCA 263 Para 1

…duct, the accused demonstrated a consciousness of having committed the offence with which he is charged: R v Nguyen at 489-90; [20]-[21], R v Ciantar [2006] VSCA 263; 16 VR 26 at 48; [70]. This matter is satisfied in this case by the evidence that I have identified above (at [10]-[16]) and the facts and circumstan…
Quinlan v The Queen
[2006] NSWCCA 284 Para 1

…estruction of evidence ( R v Nguyen (2001) 118 A Crim R 479), attempts to influence the evidence of witnesses ( R v Smit [2004] NSWCCA 409), flight ( Quinlan v The Queen (2006) 164 A Crim R 106), and the hiding of evidence ( Pollard v The Queen [2011] VSCA 95; 31 VR 416). No doubt there are other examples and many more will…
R v Smit
[2004] NSWCCA 409 Para 1

…006) 166 A Crim R 501), the destruction of evidence ( R v Nguyen (2001) 118 A Crim R 479), attempts to influence the evidence of witnesses ( R v Smit [2004] NSWCCA 409), flight ( Quinlan v The Queen (2006) 164 A Crim R 106), and the hiding of evidence ( Pollard v The Queen [2011] VSCA 95; 31 VR 416). No doubt there…
R v TR
[2004] NSWCCA 187 Para 1

…to agitate an issue that might otherwise cause some inconvenience in the trial. See the advantages explained by Crispin J in R v TR [2004] ACTSC 10; 18 FLR 424 at 425; [6].…
The Queen v TR and VG
[2004] ACTSC 10 Para 1

…ng an opportunity to agitate an issue that might otherwise cause some inconvenience in the trial. See the advantages explained by Crispin J in R v TR [2004] ACTSC 10; 18 FLR 424 at 425; [6].…
R v Cook
[2004] NSWCCA 52 Para 1

…As to the evidence itself, Simpson J with whom Ipp JA and Adams J agreed, held in R v Cook [2004] NSWCCA 52 at [24] that, before it can be admissible, it must be shown to be capable of meeting five conditions.…
R v Yates
[2002] NSWCCA 520 Para 1

…akes the conviction of the accused more likely: Papakosmas v The Queen (1999) 196 CLR 297 at 325; [91]. The typical example, pointed out in R v Yates [2002] NSWCCA 520 at [252] is that if there is a risk that the jury might adopt an illegitimate form of reasoning or give the evidence more weight than it deserves. Se…
Papakosmas v The Queen
[1999] HCA 37 Para 1

…Unfair prejudice is not merely to be found in the fact that it makes the conviction of the accused more likely: Papakosmas v The Queen (1999) 196 CLR 297 at 325; [91]. The typical example, pointed out in R v Yates [2002] NSWCCA 520 at [252] is that if there is a risk that the jury might adopt an illegitimate form of…
Edwards v The Queen
[1993] HCA 63 Para 1

…Most commonly, the Crown relies on lies told by the accused and the High Court has set out in Edwards v The Queen (1993) 178 CLR 193, a detailed consideration of that issue and the appropriate approach that the courts should take. Other such conduct includes an accused's silence in response to an allegation that he o…
[1981] 1 QB 720
[1981] 1 QB 720

…22.The conditions to which his Honour referred were stated in R v Lucas (Ruth) [1981] 1 QB 720 and adopted in the judgment of Clarke JA in Heyde . It is apposite to note that the conditions are directed to the determination of whether or not the lies upon which the Crown sought to rely are capable of amounting to…

Legislation cited in this decision · 1

Evidence Act 2011 (ACT)
137, 192A 3 mentions (from Para 1)