SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Deacon |
| Citation: | [2021] ACTSC 292 |
| Hearing Dates: | 3, 11 November 2021 |
| Decision Date: | 3, 11 November 2021 |
| Reasons Date: | 15 November 2021 |
| Before: | Loukas-Karlsson J |
| Decision: | Orders on 3 November 2021: see [96] Orders on 11 November 2021: see [97] |
Catchwords: | CRIMINAL LAW – EVIDENCE – pre-trial application – application to adduce tendency evidence – child exploitation material – importation of tier 2 good – whether probative value of the |
| tendency evidence outweighs danger of unfair prejudice | |
| Legislation Cited: | Court Procedure Rules 2006 (ACT) r 6752 Customs Act 1901 (Cth) s 233BAB(5) Evidence Act 2011 (ACT) ss 55, 56, 97, 97A, 99, 101, 108B, |
| 135, 137 | |
| Evidence Regulation 2012 (ACT) | |
| Royal Commission Criminal Justice Legislation Amendment Act | |
| 2020 (ACT) | |
| Cases Cited: | Hothnyang v The Queen [2014] VSCA 64 HML v The Queen [2008] HCA 16; 235 CLR 334 Hughes v The Queen [2017] HCA 20; 263 CLR 338 IMM v The Queen [2016] HCA 14; 257 CLR 300 McDonald v The Queen [2014] VSCA 80; 43 VR 152 McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 |
| O’Leary v The King [1946] HCA 44; 73 CLR 566 | |
| Parkinson v Alexander [2017] ACTSC 201 R v Adam [1999] NSWCCA 189; 106 A Crim R 510 R v Amato [2021] ACTSC 155 R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 R v QX (No 5) [2021] ACTSC 247 Tully v The Queen [2016] ACTCA 4 Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 | |
| Texts Cited: | Evidence Amendment (Tendency and Coincidence) Bill 2020 (NSW) Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15th ed, 2020) |
| Parties: | The Queen (Applicant) Jeffrey Scott Deacon (Respondent) |
| Representation: | Counsel |
| K Archer (Applicant) S McLaughlin (Respondent) | |
| Solicitors | |
| Commonwealth Director of Public Prosecutions (Applicant) | |
| Legal Aid ACT (Respondent) | |
| File Number: | SCC 85 of 2021 |
| LOUKAS-KARLSSON J: | |
| Introduction |
1. The accused, Jeffrey Deacon, is charged with one count of intentionally importing tier 2 goods contrary to s 233BAB(5) of the Customs Act 1901 (Cth), namely, a doll resembling a person under 18 years of age intended to be used by a person to simulate sexual intercourse. The accused pleaded not guilty. The matter is listed for trial by jury to commence on 15 November 2021.
2. By way of Application in Proceeding dated 29 September 2021, the prosecution in this matter seeks a pre-trial ruling to adduce tendency evidence in the trial of the accused, pursuant to ss 97 and 101 of the Evidence Act 2011 (ACT) (the Evidence Act).
3. The matter came before me for hearing on 3 November 2021. On that date, I refused
the prosecution’s application to adduce Category 2 and Category 3 evidence as
tendency evidence at the trial of the accused. Further evidence was to be presented by the prosecution in relation to Category 1 evidence and the matter was adjourned to 11 November 2021.
4.…
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- R v Deacon [2021] ACTSC 292
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- [2021] ACTSC 292
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CaseChat Overview and Summary
The court considered the nature of the evidence, which involved the importation of tier 2 goods, and assessed the relevance and probative value of the proposed tendency evidence. The court had to balance the prejudicial effect of the evidence against its probative value, considering the principles of fairness and the potential impact on the jury. The applicant's legal team submitted that the evidence was crucial for demonstrating a consistent pattern of behaviour, which was essential for the jury to reach a just decision. The prosecution opposed the application, arguing that the prejudicial effect outweighed the probative value.
After careful consideration, the court concluded that the probative value of the proposed tendency evidence did not sufficiently outweigh the prejudicial effect. The court found that the evidence was not necessary to establish a key fact in issue and that the prejudicial impact on the jury could not be justified. The application to adduce tendency evidence was therefore dismissed. The court issued orders reflecting its decision, as detailed in the referenced paragraphs of the judgment.
Orders
Orders of the court
Orders on 3 November 2021: see [96]
Orders on 11 November 2021: see [97]
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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