R v Higgins
[2021] ACTSC 25
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Higgins |
Citation: | [2021] ACTSC 25 |
Hearing Dates: | 29 January & 4 February 2021 |
DecisionDate: | 22 February 2021 |
Before: | Burns J |
Decision: | See [30]–[31] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – tendency evidence – application of accused to adduce tendency evidence – application of Crown to adduce tendency evidence – consideration of s 97 of Evidence Act 2011 (ACT) – whether incidents relied upon by accused demonstrate significant probative value in establishing accused murdered deceased with knife – whether incidents relied upon by Crown demonstrate significant probative value in establishing deceased aggressor in events that led to his death |
Legislation Cited: | Evidence Act 2011 (ACT) ss 55, 56, 97, 101, Dictionary |
Cases Cited: | Hughes v The Queen [2017] HCA 20; 263 CLR 338 |
Parties: | The Queen (Crown) Joshua Higgins (Accused) |
Representation: | Counsel T Hickey (Crown) K Ginges (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Accused) | |
File Number: | SCC 267 of 2019 |
BURNS J:
By an application dated 14 January 2021 the accused, Joshua Higgins, seeks an order that he be permitted to adduce tendency evidence at his upcoming trial. The accused is awaiting trial on one charge alleging that on 10 or 11 March 2019 he murdered
Jae-Ho Oh (the deceased). The trial is listed to commence on 1 March 2021 with an estimate of four weeks.
The accused’s application is based upon a Notice of Intention to Adduce Tendency Evidence dated 14 January 2021 (the Notice). The accused proposes leading evidence that the deceased had the following tendencies:
(a)to become physically aggressive when intoxicated by alcohol;
(b)to become physically aggressive when engaged in verbal arguments concerning politics;
(c)to lose control of his emotional regulation, including by becoming physically aggressive, when he was not managing his diabetes by failing to take his required medications;
(d)to have a sexual interest in both men and women; and
(e)to make advances of a sexual nature to other men.
By a separate application filed 22 January 2021 the Crown also seeks orders that it be permitted to adduce tendency evidence at the trial. The Crown’s application is based upon two Notices of Intention to Adduce Tendency Evidence dated 21 January 2021 (the Crown’s notices). The first such notice alleges a tendency on the part of the accused, and the second notice alleges tendencies on the part of the deceased. The Crown proposes leading evidence:
(a)that the accused had a tendency to become quickly aroused to anger when intoxicated and be aggressive, irrational and assault others when angered;
(b)that the deceased had a tendency:
(i)to be at times verbally aggressive and argumentative when heavily intoxicated but not to physically assault others;
(ii)not to be sexually attracted to men and only to be sexually attracted to women.
These applications came before me for hearing on 29 January 2021, continuing on
4 February 2021, approximately four weeks prior to the scheduled commencement of the trial. Each of the applications was accompanied by a substantial affidavit. The exhibits to these affidavits totalled approximately 1000 pages. In circumstances where the accused has been in custody since 11 March 2019, it is regrettable that these applications were not made in a more timely manner. This is particularly so where the Crown Case Statement filed on 28 February 2020 anticipated the adducing of tendency evidence to establish that the deceased was not physically violent when affected by alcohol and was only sexually attracted to females.
The Crown Case Statement
The Crown case is set out in the Case Statement filed in this Court on
28 February 2020. Briefly summarised, the Crown alleges that the accused and the deceased had been acquainted since about 2010 and had become friends and drinking buddies. However, at some point the deceased stopped drinking with the accused because he disapproved of the accused using methylamphetamine. It is alleged that the accused’s behaviour was erratic when under the influence of illicit drugs, and that he would display paranoia. The Crown alleges that the accused and the deceased reconnected in about early March 2019. At that time the accused was separated from his wife and their daughter because he had been drinking and using illicit drugs. The accused was living with his parents.
It is alleged that on the afternoon of Saturday 9 March 2019 the accused lost all his money, about $200, betting on sports results. It is alleged that he had consumed cocaine the night before. At about 10pm that day he telephoned his mother and told her that he had lost all his money. She told him not to come home and that he was “kicked out”. The accused sent a text message to the deceased saying that he was coming to the deceased’s house in Gungahlin. The deceased lived in a one-bedroom flat. The deceased was intoxicated when the accused arrived. The deceased told the accused that he could sleep in the bed in the bedroom. There was a further single bed in the living room. The accused got into the bed in the bedroom and the deceased came into the bedroom and lay on top of him. The accused brushed this off as the result of the deceased’s intoxication. They talked and then the deceased went back to the bed in the living area. The accused could not sleep and used his phone to watch pornography the whole night.
On the evening of Sunday, 10 March 2019, the accused and the deceased became highly intoxicated. It is alleged that the accused had not eaten anything all day and drank about 30 standard alcoholic drinks. It is alleged that sometime between 12:30am and 2am on Monday, 11 March 2019, the accused attacked the deceased in the living area of the unit causing multiple blunt force injuries to his body. He stabbed the deceased multiple times in his back, to the back of his skull, and to the back of his neck. It is alleged that the accused ran out of the unit leaving the deceased on the floor bleeding heavily.
At about 2am on Monday, 11 March 2019, the accused was observed on a street in Gungahlin calling for help. He was barefoot and wearing shorts and a bloodstained white shirt and was holding a yellow bloodstained kitchen knife. He subsequently ran to a unit complex and pressed all of the intercom buttons. He was yelling “[c]ould you please help me? There’s someone trying to assault me. Someone was trying to kill me. Please could you please call the police”. Later he said, “I’m a bit drunk, but trust me, I’ve been attacked and I’m very scared. I need help because, they might just come back and kill me”. Police were called and attended the area of Gungahlin, locating the accused at about 2:11am in Franklin. The accused approached the police car, and police observed that he was wearing black shorts, and a bloodstained white T-shirt. He smelt of alcohol. The accused complied with police directions to lie on the ground and he was handcuffed. The accused told police “[m]y friend came at me with a knife and I took it off him”. He talked about someone being stabbed. Police asked if he had taken any drugs recently and the accused replied “[n]ot for two days”. Police found a wallet on the accused which contained an ACT Drivers Licence in the name of the deceased. Police also found a yellow kitchen knife near the accused. Police went to the address on the licence and located the body of the deceased.
At about 10:30am on Tuesday, 12 March 2019, the accused participated in an interview with police. He generally declined to talk to police about what had happened on Sunday, 10 March 2019 and Monday, 11 March 2019 which led to the death of the deceased, but he did say:
· “it all happened so suddenly, I was so drunk that like it’s so hazy I don’t know what the fuck was going on”;
· that he, the accused, probably consumed 30 standard alcoholic drinks at the deceased’s apartment on an empty stomach;
· that the deceased was drinking “shots” and started getting really moody and angry;
· that he, the accused, went to bed in the single bed;
· that he was asleep laying on his back when he found the deceased laying on top of him. He thought the deceased was “doing stuff to him” while he was sleeping, such as “maybe touching his penis”;
· that he asked the deceased if he had touched him or did anything to him and the deceased replied “[y]es”;
· that he had recorded the conversation on his mobile phone; and
· that he was drunk and felt angry, violated and just pissed off.
Dr Allnutt’s reports
Further insight into the case for the accused is found in reports prepared by
Dr Stephen Allnutt, a forensic psychiatrist who interviewed the accused at the
Alexander Maconochie Centre (AMC). Dr Allnutt’s first report is dated 15 June 2020 and follows an interview with the accused on 12 May 2020. Dr Allnutt reported that the accused told him that he and the deceased had been consuming alcohol at the home of the deceased all day on 10 March 2019. In his report to the accused’s lawyers,
Dr Allnutt records:
[T]hey were watching music videos when the deceased started commenting on the girls in the music videos which your client believed demonstrated a racist viewpoint. He said the deceased started getting angry with him about the comments that were made about the girls. Your client was drinking cans and shots. They went upstairs. Your client said, “When I get tipsy, I start talking about political science” and started to explain that no matter whether there was a democracy or a dictatorship, if the leader had the interests of the people at heart it made no difference. There was a discussion about South Korea and the deceased told him to go to sleep. They poured more drinks and he lay down on the bed.
Your client said he woke up with the deceased on top of him. His pants were down around near his penis and his waist. He asked the deceased what he was doing and if he had touched him. The deceased nodded “Yeah”. Your client said, “I didn’t think he was gay. I thought he was joking”. The deceased started yelling at him and telling him to “fuck off”. Your client said he was going to call the cops.
He recorded him on the phone asking whether he had touched him. The deceased got off the bed and ran to the kitchen, where he got a knife and came back at him. Your client said, “I thought ‘Shit’s on …what’s going to happen?’” They started wrestling and he tried to get the knife off the deceased, but the deceased would not let go. While the knife was in the deceased’s hand and your client was grabbing his hand, the deceased sliced his own left or right leg (he could not remember which). There was more wrestling on the bed and then your client got away. He had got the knife away from the deceased and stood up off the bed. The deceased then threw a glass at him, got up and ran to the kitchen. Your client remained standing there, thinking “What the fuck?” The deceased came back with the knife, yelling that he was going to “fuck him up” and Korean words meaning “fuck you”. The deceased kept calling him Chinese and yelling abuse at him. Your client said, “He was coming towards me and I think “what do I do?”” He grabbed the deceased’s hand and hit him on the back. The deceased dropped the knife and they sat down. He punched the deceased in the face. Your client said, “I didn’t know what was going on, why keep coming to attack me?” The deceased fell down. Your client? (sic) picked up a statue and threw it at him, then threw a TV at him and ran off.
Dr Allnutt engaged in a further interview with the accused on 2 July 2020 at the request of the accused’s lawyers. The accused’s lawyers had apparently requested Dr Allnutt review with the accused how the accused had used the knife against the deceased. In his second report, Dr Allnutt recorded:
[Y]our client clarified that he had attempted to record the deceased on the phone asking him why he had touched him but was not sure whether he had pressed record. The deceased got off the bed and ran to the kitchen where de (sic) got a knife and came back at him. Your client stated that he thought “shits on, what’s going to happen?” They started wrestling and he tried to get the knife off the deceased, but the deceased would not let go (of the knife). At the time the knife was in the deceased’s hand and your client was holding his hand, pushing down, trying to get the knife off him and the deceased cut his own leg (left or right, he could not remember which) although he acknowledged that he forced the deceased’s hand to cut himself in an attempt to get him to release the knife.
There was then wrestling on the bed and your client got the knife off him. He recalled around this time he bit the deceased on the arm; but he could not remember which arm. He believed it might have been the left.
Around the time that your client was trying to get off the bed and stand, the deceased threw a glass at him and your client fell, noting that this was probably because he was drunk. The deceased got up and went to the kitchen, the deceased came back from the kitchen and he was getting up off the floor. Around this time, he was thinking “what the fuck?” and stated he recalled yelling at him words to the effect of “calm down, what’s wrong with you?” The deceased came back with the knife, yelling he was going to “fuck him up”, using Korean words meaning “fuck you”, abusing him with words such as calling him “Chinese fucker” and stuff like that. He was coming towards him and he thought “what do I do?” and “this is getting out of hand” and thoughts such as “what’s going to happen now?”
He stated that he had the knife in his right hand, and he took it to his left hand. At this stage the deceased was standing in front of him and he punched the deceased on the head. The deceased fell on the bed on his stomach and he stabbed the deceased in his back multiple times, he believed it might have been five times, but he was not sure how many. At the time he was doing this he said he was feeling “petrified” and scared for his safety. He said he was trying to stop the deceased. He did not think that stabbing him with the knife would kill him because he said that it was not a big bladed knife. He said he was just trying to survive.
The relevant legislation
The following provisions of the Evidence Act 2011 (ACT) (the EA) are relevant to this application:
55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to—
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to present evidence.
56 Relevant evidence to be admissible
(1) Except as otherwise provided by this Act, evidence that is relevant in a
proceeding is admissible in the proceeding.(2) Evidence that is not relevant in the proceeding is not admissible.
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if—
(a) the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b) the evidence is presented to explain or contradict tendency evidence presented by another party.
Note The tendency rule is subject to specific exceptions about the character of and expert opinion about accused people (s 110 and s 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
The Notice identifies multiple documents annexed to an affidavit affirmed by the applicant’s lawyer as the evidence he proposes leading at the trial to establish the alleged tendencies on the part of the deceased. I will refer briefly to each document by reference to its affidavit exhibit identifier:
(A) TXT 7:
a)a letter from the Deputy Vice-Chancellor of the University of Canberra dated 1 December 2016 addressed to the deceased stating that it was alleged that he had engaged in serious non-academic misconduct on 12 November 2016 by “engaging in behaviour offensive to an officer or employee of the University”. The letter goes on to state “[s]pecifically, it is alleged that you behaved aggressively towards Security Offices who asked you to vacate the Library because you had been asleep on one of the lounges and appeared to be intoxicated. These behaviours are in breach of Library policy. The reports, dated 12 November and 18 November 2016, also stated that ACT Police were called to assist and that you were arrested and escorted from the Library, and off the University of Canberra campus”;
b)an email dated 21 November 2016 setting out a report in relation to the above incident;
c)an email dated 15 November 2016 notifying the deceased of a Notice of Summary Inquiry conducted by the University in relation to the above incident;
d)a draft email dated 20 March 2009 prepared by the Dean of the Faculty of Law at the University of Canberra stating, in part, “It is reported by a number of sources that Mr Oh later attended at the Law Faculty reception in an agitated state and adopted a rude and aggressive manner to the women working there”;
e)an email dated 1 November 2013 from the Advocacy Officer of the University of Canberra Students Association to the Student Welfare Officer regarding assistance being provided to the deceased to obtain accommodation, in which it is stated “[h]omestay may be a good option but I am really concerned for the people that live with him, he is intimidating and violent at times”;
f)a document entitled “Summary Inquiry Meeting Minutes” referring to a summary inquiry conducted by the University of Canberra on 22 December 2016, noting that the deceased provided documentary evidence of a diabetic condition which caused him to be drowsy, confused, incoherent and temporarily incapacitated when woken abruptly from sleep. The deceased was found not guilty of breaching the Student Conduct Rules 2015.
(B) TXT 8:
a)documents produced by the University of Canberra Medical Centre (the Medical Centre) setting out medications prescribed to the deceased and information provided by him regarding his consumption of alcohol;
b)documents produced by the Medical Centre suggesting that the deceased’s diabetes was poorly controlled and that he did not regularly take his prescribed medication;
c)documents produced by the Medical Centre stating that the deceased had been rude and aggressive towards staff at the Medical Centre in 2009;
d)a letter produced by the Medical Centre dated 13 December 2016 in support of the deceased’s disciplinary hearing suggesting that the deceased’s low blood sugars and use of strong painkillers may have contributed to aggressive behaviour;
e)a notation in the records of the Medical Centre on 9 January 2018 that the deceased “[h]as had various issue (sic) around his behaviour in public places following the consumption of excessive alcohol”;
f)a notation in the records of the Medical Centre on 25 November 2016 stating that the deceased “Is taking pain medication – but also continues to drink”;
g)a notation in the records of the Medical Centre on 1 December 2011 stating that the deceased “states new problem emerged with homosexuality. Says has been in ‘clubs’ and a 70 year old guy/friend ask him to dance tells him he is beautiful and ‘how about it’. J declines invitations, states is not gay etc”.
(C) TXT 9:
a)an Australian Federal Police record dated 4 December 1998 referring to an incident said to have occurred at about 2:10am on 20 June 1998 when police spoke to the deceased in Civic and observed that he was intoxicated. While attempting to talk to police, the deceased began to swear at other persons walking nearby and then attempted to engage in a fight with two males. Police intervened and placed the deceased in protective custody.
(D) TXT 10:
a)an Australian Federal Police record dated 5 December 1998 relating to an incident said to have occurred at about 10:30pm on 20 May 1997 where the deceased claimed that he had been assaulted by a former employer. Police spoke to the former employer who told them that the deceased had been asked to leave premises on numerous occasions and failed to do so. The employer stated that the deceased was heavily under the influence of alcohol and had become very aggressive towards the former employer and his staff.
(E) TXT 11:
a)a document prepared by the Australian Federal Police and headed Statement of Facts relating to an incident said to have occurred at about 10:25pm on 18 July 2008 when it is said that the deceased was observed slumped on the ground in the bus interchange at Tuggeranong, ACT. Police observe the deceased to be highly intoxicated and took him into protective custody. Police were advised by a member of the public that shortly before they arrived the deceased had been attempting to fight other passengers on a bus.
(F) TXT 12:a)a document prepared by the Australian Federal Police and headed Statement of Facts relating to an incident said to have occurred at about 8:25pm on 2 June 2010 when it is said that the deceased was observed to be highly intoxicated in Dickson, ACT. The manager of a nearby restaurant told police that the deceased had been at the restaurant having dinner with two males and together they consumed four bottles of wine. After the other two males left the deceased approached a nearby table and started harassing people. He was escorted out of the restaurant and police were called. Police placed the deceased under arrest “for breaching the peace” because the deceased “had conducted himself to the annoyance of various members of the public and his behaviour was aggressive and violent”.
(G) TXT 13:
a)an Australian Federal Police record relating to an incident said to have occurred at about 10:35pm on 19 December 2010 when it is alleged that the deceased had damaged a vending machine at the University of Canberra and taken a soft drink. No prosecution of the deceased was commenced.
(H) TXT 14:
a)a document prepared by the Australian Federal Police headed Statement of Facts relating to an incident said to have occurred in the early hours of 25 October 2013 when it is alleged that the deceased behaved aggressively towards other residents of student accommodation conducted by the University of Canberra and damaged property. It is alleged that he was intoxicated at the time. It is further alleged that he became agitated and aggressive towards other residents and police when arrested.
(I) TXT 15:
a)a document prepared by the Australian Federal Police headed Statement of Facts relating to an incident said to have occurred in the late hours of 3 April 2014 when it is alleged that the deceased was intoxicated on a bus and had been touching females and swearing. The deceased was asked to leave the bus by the bus driver and he refused. Police were called and the deceased was taken into custody for “being intoxicated and behaving in a disorderly manner in a public place”.
(J) TXT 16:
a)an Australian Federal Police record relating to an alleged incident said to have occurred at about 9:20pm on 1 January 2018 when it is alleged that the deceased urinated on the window of a licensed club after he had been required to leave because he was intoxicated.
(K) TXT 17:
a)an Australian Federal Police record relating to an alleged incident said to have occurred at about 6:30pm on 20 May 2018 at a club in Gungahlin. Police were called to the club regarding an allegation that the deceased was refusing to leave the club and had assaulted another patron. Police recorded that the deceased was intoxicated and that he denied assaulting anyone. No victim was identified. Police directed the deceased to leave the club which he did.
(L) TXT 18:
a)an Australian Federal Police record relating to an alleged incident said to have occurred just after midnight on 31 May 2018 when it is alleged that the deceased became involved in an argument with an employee of a licensed club concerning a poker machine payout and assaulted the employee by using both hands to grab the front of the employee’s shirt. Police subsequently spoke to the deceased who smelt of alcohol but gave no obvious signs of significant intoxication.
(M) TXT 19:
a)a written statement made by TH dated 27 November 2020 apparently prepared for the purpose of indicating what evidence TH may be able to give at the trial of the applicant. I assume for present purposes that the applicant does not propose tendering the written statement, but would call TH to give evidence consistent with the contents of the statement. TH describes an incident where he was invited to the house of the deceased by the applicant for drinks sometime between 2015 and 2017. He described the deceased as initially welcoming and friendly, but his demeanour completely changed when he became intoxicated. The deceased became aggressive and abusive.
(N) TXT 20:
a)a written statement made by EN dated 29 October 2019 also apparently prepared for the purpose of indicating what evidence EN could give at the trial of the applicant. I again assume for present purposes that the applicant does not propose tendering the written statement but would call EN to give evidence consistent with the contents of the statement. EN was the agent acting on behalf of the owner of residential premises leased to the deceased and another tenant. It is alleged that in February 2019 EN conducted an inspection of the property and located some chipped tiles. The deceased made allegations that EN had chipped the tiles herself, and as EN left the premises it is alleged the deceased followed her closely yelling things like “you are a bad person”, “you are an evil person” and “you did this damage”. EN found this behaviour very intimidating and scary. On another occasion the deceased telephoned EN in the middle of the night, sounding intoxicated. He mumbled into the phone saying things like “bad person”.
(O) TXT 21:
a)a written statement made by QN to the Australian Federal Police and dated 26 March 2019. I assume that the applicant does not propose tendering the written statement but would call QN to give evidence consistent with the contents of the statement. QN states, at [6]:
In either 2013 or 2014, I saw [the deceased] ready to get violent when he got into a political argument with a student not known to me. The student was a male around early 20’s. They were talking about the Singaporean Leader Lee Kwan Yew. The young student was talking about Lee Kwan Yew as a dictator and [the deceased] was talking about Lee Kwan Yew as defender of democracy. I saw [the deceased] go and get a baseball bat from his room, but everyone around him managed to calm him down. The other student didn’t seem that violent. I’m not sure how much [the deceased] had drunk, but I remember being drunk at the time. This was the only time I saw [the deceased] grab a baseball bat. I got the impression that [the deceased] could get violent if you pissed him off. When [the deceased] was violent, he was just shouting. I never saw him get physical or threating (sic) violence towards people other than the baseball bat incident.
(P) TXT 22:
a)an oral statement made by HN to police on 21 March 2019 as part of a Record of Conversation in which HN stated that the deceased identified as “homosexual, bisexual and heterosexual”.
The Crown’s evidence alleging a tendency on the part of the accused to become aroused to anger when intoxicated
To establish that the accused has a tendency to become quickly aroused to anger when intoxicated and to be aggressive, irrational and assault others when angered, the Crown proposes leading evidence of 14 incidents. I will provide a brief summary of each incident:
(a)Incident 1:
At about 12:55am on 7 October 2011 the accused had been drinking alcohol with his ex-girlfriend, NT, at UniLodge, Canberra City, when he threw a glass bottle which hit her in the face. It caused a laceration between her eyes. A neighbour, NM, was woken by the banging and walked into the common kitchen, where the accused said to her “I am going to fuck you”. He grabbed a bowl which was in NM’s hands and raised his right hand towards NM’s throat, pushing her chest causing her to stumble backwards. The accused picked up a rice cooker and threw it at NM, just missing her head. The accused then picked up a chair and NM ran back to her room and locked the door. A Residential Advisor heard the disturbance and used his master key to open the door to NT’s room and found her on the bed bleeding. He called police. When police arrived, they noticed the accused was heavily intoxicated and demonstrating extreme behavioural patterns, alternating between calm and friendly to highly aggressive and agitated without provocation. An ambulance was called and NT told paramedics that she did not think that the accused meant to hit her with the bottle.
(b)Incident 2:
At about 3:30am on 3 May 2012 the accused went to the University of Canberra dressed in lace underwear and was highly intoxicated. A resident asked the accused to leave. However, the accused became distressed and abusive and the resident called police. University security attended and requested the accused leave. The accused then punched a bystander in the head and attempted to bite the security guard’s neck. When police arrived they arrested the accused. While being transported to the ACT Watch House, the accused scratched and bit at his wrists, bared his teeth and snarled the police before striking out at them.
(c)Incident 3:
At about 3am on 13 August 2012, police went to the UniLodge in Belconnen in response to reports of the accused being violent and having a psychiatric episode. When police arrived they saw the accused being restrained on a corridor floor by TL and CQ. The accused was not wearing a shirt and was struggling to free himself. Police took over the restraint and the accused attempted to bite them. Police noticed the accused was heavily intoxicated. A short time later an ambulance attended and sedated the accused due to him physically resisting, biting and hitting ambulance members and himself. He was taken to hospital.
(d)Incident 4:
At about 5:56am on 5 June 2013, police went to an address in Bruce following reports of the accused sleeping in the front yard of a residence. When police arrived they noticed the accused was heavily intoxicated and police took him home to his house. As they were releasing him into the care of his parents, the accused became irrational and walked away back towards the police car, believing that his mobile phone was in the back seat. Police told him that his phone was not in the car and tried to get him inside. The accused ran towards the house, picked up a skateboard that was lying near the entrance and used it to smash a window and ran inside. Police followed the accused and restrained him while he struggled and attempted to kick and bite them.
(e)Incident 5:
At about 12:08am on 24 June 2013, police attended an address in Bruce in response to the accused being at home drunk, possibly on drugs, and aggressive. When police arrived they saw him slumped in a garden bed with a large laceration to his forearm after punching a window. Police administered first-aid as the accused was lapsing in and out of consciousness. A short time later the accused regained consciousness and began resisting police and attempting to assault, bite and spit at them. Ambulance officers arrived and took over treating the accused and he continued to be verbally aggressive stating that someone was trying to kill him and he continued to struggle against police and ambulance officers.
(f)Incident 6:
At about 9:20pm on 4 August 2013, the accused went to a restaurant in Canberra, but it was closed and staff members were cleaning. The accused tried to order some fried rice but was told the restaurant was closed and was asked to leave. The accused refused to leave saying in English and Mandarin “I am Chinese? Fuck Chinese”. The accused laid down on the floor and rolled around. He got up and grabbed glass bottles of soy sauce and other china and began smashing them and throwing furniture. Police were called. The accused turned towards a member of staff and threatened him while waving a broken glass in his hand. He then grabbed hold of a female staff member and forced her down towards the table. Other employees tried to disarm the accused, but he broke free and took hold of a third staff member and kneed her in the thigh. When police arrived they saw the accused collapsed behind the service counter and noticed he was heavily intoxicated.
(g)Incident 7:
At about 11:50pm on 9 June 2014, police went to an address in Amaroo in response to the accused banging on different doors in the street. Police noticed the accused was heavily intoxicated and he became verbally abusive and aggressive towards them. He swore at police when placed in protective custody. Police handcuffed him and as he walked towards the police car he turned his head to spit on police. At the police station the accused became aggressive and abusive towards police.
(h)Incident 8:
At about 10:30pm on 27 February 2015, police went to Club Lime gym in Gungahlin in response to the accused being intoxicated and harassing and threatening other members. When police arrived they spoke to the accused who apologised and stated he is suffering a mental illness.
(i)Incident 9:
At about 2am on 19 May 2015, police attended the University of Canberra car park following reports of a male standing in front of cars as female international university students tried to leave and refusing to allow them to exit. The male had told people that he had a knife. When police arrived, they spoke to the accused who was belligerent and non-compliant with directions. Police searched him but did not find a knife. Police contacted the accused’s mother to attend to pick him up, which made the accused unhappy and he began to yell and abuse police and move towards them. Police sprayed the accused with Oleoresin Capsicum (OC) spray and handcuffed him. A short time later the accused’s mother arrived and took him away.
(j)Incident 10:
At about 2am on 20 December 2016, police went to an address in Bruce in response to a reported disturbance. When they arrived they saw that the accused was highly intoxicated and was being held back by his mother while being aggressive to another male. The accused attempted to lash out at the male causing police to intervene. The accused was incoherent and visibly intoxicated. The male was telling police that the accused had been unable to locate his personal belongings, when the accused unexpectedly lashed out at the male by biting his arm and scratching his chest.
(k)Incident 11:
At about 11:30pm on 9 December 2017, police went to a car park at Westfield Belconnen in response to a report of an intoxicated male. When police arrived they saw the accused was intoxicated and standing in a stairwell. Police spoke to the accused and contacted his family but they were not able to look after him. Police told the accused that they would take him to the Sobering Up Shelter but he replied that he would bash them if they touched him and he made fists with both hands and tensed his body.
(l)Incident 12:
At about 1am on 1 January 2018, police attended a premises in Bruce in response to reports of the accused smashing glass and throwing household items in a public part of an apartment complex. It was alleged that he had earlier ransacked his own apartment. When police arrived, the accused was screaming and yelling and attempted to run away. Police saw that he was highly intoxicated, not wearing a shirt or shoes and had minor cuts to his hands. The accused told police he was going to fight an unknown person and screamed threats to kill “Johnny”. Police took the accused into protective custody. Later, police contacted his partner, NT, who stated that the accused came home from Civic after drinking so she went to her mother-in-law’s house because the accused had a history of being aggressive when intoxicated.
(m)Incident 13:
At about 5:30am on 27 January 2018, police went to College Street in Bruce in response to reports of the accused attempting to enter random cars. When police arrived they saw the accused standing at an intersection holding a knife behind him and noticed he was intoxicated. Police arrested the accused and he admitted carrying the knife, stating “[b]ecause people wanted to bash me. I have it for protection”. Police seized the 20 cm bladed kitchen knife and the accused was taken to the ACT Watch House and then to the Canberra Hospital.
(n)Incident 14:
At about 4pm on 10 February 2018, police went to Westfield Belconnen in response to reports the accused was removed by security staff for being intoxicated and trying to fight random people. When police arrived they spoke to security staff who told them that the accused had been running onto the road endangering himself and obstructing traffic. Police noticed the accused was intoxicated and took him into protective custody for being intoxicated and behaving in a disorderly manner. As the accused was not compliant, he was placed in handcuffs and taken to the ACT Watch House. When the handcuffs were removed he punched a police officer in the face.
The Crown’s evidence alleging tendencies on the part of the deceased
In its second Notice of Intention to Adduce Tendency Evidence, the Crown proposed leading evidence of 38 incidents to prove that the deceased had the tendencies alleged. Of those, the first 35 incidents were relevant to the alleged tendency for the deceased to be verbally aggressive and argumentative, but not physically assault, when heavily intoxicated. Incidents 36, 37 and 38 were alleged to be relevant to establishing that the deceased had a tendency to not be sexually attracted to men and only be sexually attracted to women. I will further very briefly outline each of those incidents as set out in that Notice:
(a)Incident 1:
In about 2010, BK often caught up with the deceased and had a drink with him at the Refectory at the University of Canberra. They talked about day-to-day things, and BK never observed the deceased get into an argument or be aggressive with anyone.
(b)Incident 2:
On 16 May 2009, the deceased drank a quantity of alcohol and was extremely intoxicated. He attempted to open a beer with a chef’s knife but cut his right thumb. He presented at the Calvary Hospital and received sutures.
(c)Incident 3:
At about 8:51pm on 24 April 2010, police went to the bus interchange in Civic in response to a complaint from a nearby restaurant that an intoxicated male was accosting patrons and speaking to them in an overly loud voice. Police saw the deceased sitting at a bus shelter opposite the restaurant. Police spoke with him but he had difficulty understanding them because of his level of intoxication. The deceased was generally argumentative and he was taken into custody.
(d)Incident 4:
At about 11:28pm on 20 May 2010, while patrolling Wanniassa, police saw the deceased within a fence at Trinity Christian School. The deceased told police he had been drinking with friends earlier and had caught a bus to Monash and got lost. Police observed the deceased was well affected by alcohol. They conveyed him to his home address in Monash.
(e)Incident 5:
At about 8:25pm on 2 June 2010, police attended Dickson in response to a report of an intoxicated male causing problems at a restaurant. When police attended they observed the deceased standing outside the restaurant. He was yelling obscenities as police approached. Police noticed he was heavily intoxicated. He was placed under arrest for breaching the peace and was later released into the custody of his sister. This appears to be the same incident referred to in TXT 12.
(f)Incident 6:
At about 1am on 29 September 2010, police went to the bus interchange in Civic in response to reports of a heavily intoxicated man falling asleep and stumbling on his feet. Police approached the deceased who was stumbling around the bus interchange. They noticed that he was heavily intoxicated and had trouble following police directions. He was taken into custody.
(g)Incident 7:
At about 5:15pm on 23 March 2011, police went to the University of Canberra after a report of an intoxicated person at the ground. Security advised police that the person had been behaving in an agitated and erratic manner towards staff and students. Police located the deceased and observed that he was heavily intoxicated. While interacting with police the deceased became combative and made efforts to leave the area. He was restrained in handcuffs and placed into protective custody.
(h)Incident 8:
At about 8:50pm on 16 July 2011, police were called to a club in South Canberra because the deceased was refusing to leave the premises. The deceased was intoxicated to the extent that police believed he was unable to care for himself and they then conveyed him to a house in Monash.
(i)Incident 9:
At about 9:30pm on 28 October 2011, police attended the University of Canberra and spoke to the deceased who was heavily intoxicated. He was placed in protective custody.
(j)Incident 10:
At about 11:30pm on 19 December 2011, police attended an address and spoke to the deceased who was extremely intoxicated and unaware of where he was. He told police he was trying to get home. Police obtained his address and dropped him to his house.
(k)Incident 11:
At about 10:40pm on 27 January 2012, police spoke to the deceased at the Tuggeranong bus interchange. He was heavily intoxicated and had been sleeping on a seat in the interchange. Police conveyed him home.
(l)Incident 12:
On 25 February 2012, the deceased drank alcohol with friends and fell asleep under a library table. Security staff called an ambulance and he was transported to hospital.
(m)Incident 13:
At about 7:30pm on 9 March 2012, police attended the University of Canberra and spoke to the deceased who was seated under a tree. They observed that he was heavily intoxicated. He was taken into protective custody and conveyed to the City Watch House.
(n)Incident 14:
At about 9:20pm on 24 October 2012, police went to the University of Canberra in response to a report of an intoxicated male refusing to leave and abusing students. When police arrived they spoke to the deceased who stated that he was a student at the University. Police asked him to leave which he did.
(o)Incident 15:
At about 10:44pm on 15 December 2012, police went to International House at the University of Canberra in response to a report of a male being at a private function when he was not invited. Police spoke to the deceased who was intoxicated but not behaving disorderly. Police told him that he had to leave and conveyed him to a bus stop so he could go home.
(p)Incident 16:
At about 1:49am on 16 December 2012, after the incident set out immediately above, police went to the University of Canberra library in response to a complaint that a male was intoxicated and drinking beer. Police approached the deceased and told him that he had to leave. The deceased told police he had nowhere to go. Police conveyed him to the Sobering Up Shelter.
(q)Incident 17:
In or about 2012 or 2013, LN met the deceased. They had many interactions where they would have discussions over coffee or a drink. She saw the deceased intoxicated on a number of occasions and when he became severely intoxicated he would “lie down and go to sleep”. She said “before he got to that stage, he would still want to talk”. Other than being irritating he was never physical or aggressive towards anybody when he was drunk.
(r)Incident 18:
In about 2012 or 2013, BH met the deceased when the deceased rented a room off him. BH said the deceased would get drunk regularly and the more he drank the more he became a little bit too touchy and verbally aggressive to another housemate. However, there were no physical altercations other than “finger poking”.
(s)Incident 19:
At about 10:20pm on 21 September 2013, police went to the Belconnen bus interchange in response to a report of an intoxicated male passed out on a bench. When they arrived, they spoke to the deceased who was extremely intoxicated. He was taken into protective custody.
(t)Incident 20:
At about 2:30am on 25 October 2013, police were called to an address in Belconnen, and in relation to a noise complaint. When they arrived, they spoke to the deceased and asked him to keep the music off. He complied and police left the area. A short time later the deceased left his room and went to a common kitchen area and stopped in the doorway and stared down another resident. The deceased hunched his shoulders forward and curled both hands into fists. He then began to beat his chest and pointed at the resident. The deceased’s demeanour was aggressive, and he appeared highly agitated. This continued for 10 minutes. Later at about 3:05am the deceased picked up a chair and threw it at a sliding glass door in the kitchen yelling “fuck” causing the glass break. A couple of minutes later he picked up the chair and threw it again at the sliding glass door. A short time later the deceased stopped another resident and repeated his earlier behaviour of staring down the resident. Police were called. They observed the deceased to be heavily intoxicated and struggling to understand police directions. He was taken into custody and became aggressive and struggled with police. This appears to the same incident referred to in TXT 14.
(u)Incident 21:
In about 2013, QN met the deceased. They drank together a few times over the next four years. QN never saw the deceased become physical or threaten violence towards people other than an incident in either 2013 or 2014 when he got into a political argument with another student and went and got a baseball bat from his room before people managed to calm him down. This appears to be the same incident referred to in TXT 12.
(v)Incident 22:
At about 8:50pm on 3 April 2014, police were called to a report of an intoxicated male on a bus who was annoying passengers. Police arrived and spoke to the deceased and observed that he was intoxicated. He was taken into custody. This appears to be the same incident referred to in TXT 15.
(w)Incident 23:
At about 12:10am on 12 September 2014, police attended an area in Dickson in relation to a report of an intoxicated male. When police arrived ambulance officers were treating the deceased who was lying on the ground unconscious, pale and heavily intoxicated. Police took him to the Sobering Up Shelter.
(x)Incident 24:
At about 12:50am on 6 October 2014, police observed the deceased on the steps of retail premises in Civic. Police observed that the deceased had passed out and had vomit on his chin. Police woke the deceased and spoke to him and noticed he was heavily intoxicated. He was taken into custody for his own safety.
(y)Incident 25:
At about 2am on 1 January 2016, police were conducting a patrol in Dickson when they heard a male yelling loudly in a car park. Police saw two males sitting on the curb. The younger male was yelling profanities at the older male, the deceased. The deceased was unable to provide his name or address. Police observed that he was heavily intoxicated and he was placed in the Sobering Up Shelter.
(z)Incident 26:
At about 7:41pm on 16 May 2016, police attended a bus stop in Gungahlin in response to a report of an intoxicated male who had fallen on the road. Police spoke to the deceased but he was unable to speak coherently. Police noticed that he was extremely intoxicated. He was taken into protective custody.
(aa)Incident 27:
At about 6:43pm on 18 November 2016, police attended the University of Canberra library in response to a report of an intoxicated male causing a disturbance by yelling abusively at staff and students. Police spoke to the deceased and observed he was heavily intoxicated. He continued to swear loudly and abusively at police, staff and students. He gestured aggressively at staff on a number of occasions. He was taken into protective custody for being intoxicated and disorderly in a public place. This appears to be the same incident referred to in TXT 7(a).
(ab) Incident 28:
In about 2016, NK met the deceased when they were studying at a university at the same time. Over time they got to know each other and would catch up every now and then. NK observed that the deceased could be argumentative and headstrong on certain things. He never saw the deceased use alcohol excessively although he would see him noticeably intoxicated every couple of weeks. He never saw the deceased to display any acts of violence.
(ac) Incident 29:
At about 9:40pm on 31 March 2017, police were called to a club in Gungahlin in response to an intoxicated male refusing to leave the premises. Police spoke to the deceased, but he refused to engage with them. Police noticed the deceased was heavily intoxicated. Police escorted the deceased out of the club and took him into protective custody for being intoxicated.
(ad) Incident 30:
At about 9:20pm on 1 January 2018, police went to a club in Gungahlin in response to an intoxicated male who had been ejected from the club and was urinating on the windows outside. Police spoke to the deceased who said that he had been ejected from the club and was angry because he wanted to stay, so decided to urinate on the windows as punishment to the staff. A short time later the deceased left the area in a taxi. This appears to be the same incident referred to in TXT 16.
(ae) Incident 31:
At about 8:45pm on 3 January 2018, police went to a club in Gungahlin in response to a report of an intoxicated male being abusive towards staff and other patrons and refusing to leave the premises. When police arrived they spoke to the deceased and noticed that he was heavily intoxicated. They placed him under arrest for trespass.
(af) Incident 32:
At about 12:30am on 31 May 2018, police went to a club in Gungahlin after a report of a patron becoming aggressive and grabbing a staff member by the front of the shirt and refusing to leave the premises. When police arrived, the deceased had left the premises and was found nearby. Police noticed that he was intoxicated. This appears to be the same incident referred to in TXT 18.
(ag) Incident 33:
Between about 2014 and 2018, HN met the deceased at university. The deceased invited HN to his residence on several occasions. HN observed that the deceased could be angry or aggressive, particularly when under the influence of alcohol. However, it was mostly verbal swearing.
(ah) Incident 34:
The son of the deceased described his father as being very disruptive when drunk. He said that the deceased had two very different emotional states depending on whether he was sober or drunk. When sober he was very calm, very jovial and tried to appear funny and happy. When he was drunk he would appear very angry and aggressive although he was never physically violent.
(ai) Incident 35:
The mother of the deceased stated that the deceased struggled with alcohol, although he never drank in the family home. She recalled the deceased would return home drunk and wake people up and talk a lot. However he was never violent.
(aj) Incident 36:
In about 1989, the deceased married a Korean woman and they had a baby in 1991. Later they divorced. Later the deceased had a girlfriend–boyfriend relationship with another woman.
(ak) Incident 37:
In 2013 and 2014 when QN was socialising with the deceased, he observed that the deceased never showed any sign of being homosexual. When they drank together they spoke about women.
(al) Incident 38:
In about 2016 HH met the deceased and the accused at a bar at the University. Sometime that year HH engaged in sexual contact with the accused in his room at UniLodge Belconnen where he performed oral sex on him. At some point the deceased walked in on them and the accused asked the deceased to join in, but he declined.
Consideration
It seems fairly clear from what the accused told police and what he told Dr Allnutt that he will not dispute that he killed the deceased by stabbing him with a knife. The issues that are likely to rise on the accused’s trial are:
(a) what happened between the accused and the deceased before the accused stabbed the deceased;
(b) whether the accused had one of the mental states required for the crime of murder when he stabbed the deceased;
(c) whether the Crown can prove that the accused was not acting in self-defence when he stabbed the deceased;
(d) whether the act causing death occurred under provocation; and
(e) whether the accused was suffering from an abnormality of mind that substantially impaired his mental responsibility when he stabbed the deceased?
The accused has asserted in his conversations with Dr Allnutt that he was sexually assaulted and attacked with a knife by the deceased when the deceased was intoxicated. It is clear that proof that the deceased possessed the tendencies alleged by the accused has sufficient basal relevance, in that proof of those tendencies if accepted by the jury could rationally affect the assessment of the probability of a fact in issue, being whether the deceased acted as the accused says he did immediately before the accused stabbed him. Logically, for example, it is more likely that the deceased would have acted as the accused suggests if he had a tendency to become physically aggressive when intoxicated by alcohol. It is more likely that the deceased would have engaged in sexual conduct towards the accused if he had a sexual interest in males. The basal test of relevance is thus satisfied.
Similarly, the tendencies on the part of the accused and the deceased alleged by the Crown satisfy the basal test of relevance. Proof of one or more of those tendencies could rationally affect the probability of a fact in issue, being whether the accused was the aggressor in the events that had led to the death of the deceased and whether the deceased sexually assaulted the accused.
Simple relevance is not enough to make tendency evidence admissible. The provision s 97(1)(b) of the EA prohibits the use of tendency evidence unless the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to adduce the tendency evidence, have significant probative value. The probative value of evidence is “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”: EA, Dictionary. In Hughes v The Queen [2017] HCA 20; 263 CLR 338 (Hughes), the majority (Kiefel CJ, Bell, Keane and Edelman JJ) said at [16] “[t]endency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent”. Later, at [40], the majority said:
[T]he test posed by s 97(1)(b) is as stated in Ford ((2009) 201 A Crim R 201): “The disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged”. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged…
The High Court in Hughes was considering the application of s 97(1)(b) in circumstances where the disputed evidence was led by the Crown to prove or assert tendency of the accused. Some changes are obviously required when considering evidence led to establish a tendency of a third party, such as the deceased. The Crown seeks to lead evidence of a tendency or tendencies on the part of the deceased to make it more probable that the accused had one of the required states of mind for the crime of murder at the time he stabbed the deceased, and that it is more probable that the accused rather than the deceased was the aggressor. Insofar as the Crown seeks to prove tendencies on the part of the deceased, it does so to contradict the proposed defence tendency evidence and to establish that it is more probable that the accused was the aggressor. Making the necessary changes for these different circumstances, the test set out in Hughes remains the relevant test.
Admissibility of evidence of an alleged tendency of an accused led by the Crown is subject to a further impediment. Such evidence is not admissible unless the probative value of the evidence outweighs any prejudicial effect it may have on the
accused: s 101(2) EA. This section does not apply to tendency evidence to be led by an accused, nor does it apply to tendency evidence led by the Crown to explain or contradict tendency evidence led by the accused: s 101(3).
I am satisfied that both the applications by the accused and the Crown should be refused. I will briefly give my reasons, commencing with the accused’s application.
The documents relied upon by the accused may well have probative value in establishing that the deceased could be argumentative, aggressive and abusive when intoxicated by alcohol. This is a long way, however, from demonstrating significant probative value in establishing that the deceased murderously attacked the accused with a knife when the accused threatened to inform police that the deceased had sexually assaulted him. In TXT 7(e) there is a reference to the Advocacy Officer at the University of Canberra stating that the deceased “is intimidating and violent at times”, but no description of any conduct on the part of the deceased from which this opinion was derived is given. While a court is required to take proposed tendency evidence “at its highest” for the purposes of determining whether it has significant probative value, “the circumstances surrounding the evidence may indicate that its highest level is not very high at all”: IMM v The Queen [2016] HCA 14; 257 CLR 300 at [50]. The evidence in TXT 7(e) suggesting that the deceased was “violent at times” is simply an assertion to that effect in an email, with no supporting evidence against which that assertion may be tested. It can have little probative value.
The letter to the inquiry conducted by the University of Canberra referred to at TXT 7(f) at [13] above could have little probative value in the present case. The accused does not suggest that that the deceased had been woken abruptly from sleep at the time, the accused says, he attacked the accused with the knife.
Some of the documents relied upon by the accused suggest that the deceased could be physically violent at times when intoxicated by alcohol: TXT 9, TXT 11,
TXT 14, TXT 17, TXT 18, TXT 21. Many of the accounts of physical violence by the deceased in these documents are clearly hearsay, with no description of conduct against which the assertion may be tested. Perhaps the most significant document is the statement of QN in which he describes an incident where the deceased obtained a weapon (a baseball bat) in the context of a political argument with another student. The probative value of that evidence is detrimentally affected, however, by the fact that the incident occurred in 2013 or 2014 and that the circumstances were very different to those surrounding the death of the deceased as described by the accused.
The material linking the deceased’s diabetic condition with any tendency on his part to become violent is particularly thin. It appears to be limited to the document in TXT 8(d). It is of significance to note that the document referred to offers no definitive opinion about any connection between the deceased’s low blood sugars and his aggressive behaviour, and includes as part of the hypothesis that pain killers the deceased was taking may also have contributed.
To the extent that the documents relied upon by the accused simply testify to the deceased behaving in a disorderly or even aggressive manner when intoxicated, the evidence does not possess significant probative value in establishing that the deceased was the aggressor in the events prior to his death and acted in the manner alleged by the accused.
The notation on the University Medical Centre record on 1 December 2011
(TXT 8(g)) has no probative value in establishing that the deceased had a tendency to have a sexual interest in both men and women, or to make sexual advances to other men. The statement made by HN that the deceased identified as “homosexual, bisexual and heterosexual” (TXT 22) may have some probative value in establishing that the deceased was open to sexual activity with other men, but proof of that fact is of little relevance in establishing that the deceased sexually assaulted the accused while the accused was unconscious. Of itself, proof of the deceased’s sexual orientation does not carry significant probative value, and there is no other evidence identified which gives it such value.
Turning to the Crown’s applications, to the extent that they are reactive to the accused’s application, they are now irrelevant. Many of the incidents relied on by the Crown could satisfy a jury that the accused had, at the relevant time, a tendency to become quickly aroused to anger when intoxicated and to be aggressive, irrational and assault others when angered. Proof of that tendency does not in my opinion possess significant probative value in rebutting the version of events given by the accused to
Dr Allnutt. Certainly, it would not satisfy the test for admissibility found in s 101 of the EA. Incidents 6 and 13 in the Crown’s first Notice of Intention to Adduce Tendency Evidence allege the use or possession of a weapon by the accused, being a broken glass and a knife respectively. Incident 13 does not involve any allegation of use of the knife by the accused. Incident 6 alleges bizarre conduct by the accused which occurred in 2013, and in very different circumstances to those surrounding the alleged offence. The probative value of the evidence is not great, and the risk of unfair prejudice to the accused if the evidence is led is significant.
Conclusion
The accused’s application of 14 January 2021 is dismissed. The Crown’s application of 21 January 2021 is also dismissed.
I order that these reasons are not to be published, other than to parties, until after the trial of the accused.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
0
2
0