R v Im

[2013] ACTSC 65

R v IM                 
[2013] ACTSC 65 (8 April 2012)

CRIMINAL LAW – EVIDENCE – tendency evidence – application to adduce –
s 97 Evidence Act 2011 (ACT) – whether evidence can prove proposed tendency – evidence lacks significant probative value – application refused

EX TEMPORE JUDGMENT

No. SCC 328 of 2010

Judge:             Burns J
Supreme Court of the ACT

Date:              8 April 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 328 of 2010
AUSTRALIAN CAPITAL TERRITORY           )          

R
Applicant

v

IM
Respondent

ORDER

Judge:  Burns J
Date:  8 April 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The Crown’s application to lead tendency evidence is refused.

1. The present application is governed by s 97 of the Evidence Act 2011 (ACT). That section provides:

   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. I note that the Crown seeks to lead the evidence of two of the children of the accused in the current trial which involves allegations against the accused as set out in the indictment of 15 December 2010 of the accused committing acts of indecency upon a third child. 

3. The child who is the subject of the counts on the indictment is a male child, and the other two children from whom the Crown proposed to adduce tendency evidence were female children.  That, of course, would not be fatal to any application to lead tendency evidence. 

4. However, the nature of the acts which are alleged by the Crown with respect to the proposed tendency evidence is quite vague. I doubt that it is evidence which would be capable of proving that the accused had a relevant tendency with respect to the counts on the indictment. 

5. But, in any event, even if I were to be wrong in that regard, I am firmly of the view that the evidence does not have significant probative value either on its own account or in conjunction with any other evidence which I understand the Crown will lead in the case against the accused.  And for that reason I refuse the application to lead tendency evidence.

   I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

   Associate:

   Date:   April 2013

Counsel for the Applicant:  Mr J Lundy
Solicitor for the Applicant:  ACT Director of Public Prosecutions

Counsel for the Respondent:  Mr J Glissan QC with Mr J Sabharwal
Solicitor for the Respondent:  Rachel Bird & Co

Date of Hearing:  8 April 2013
Date of Judgment:  8 April 2013