CRIMINAL LAW – EVIDENCE – Tendency Evidence – Pre-trial application – allegations of child sexual offences – where two different complainants – whether sufficient grounds to determine that tendency evidence of a sexual interest in children and of a tendency to act on that interest does not have significant probative value – where one instance occurred when accused was between 12 and 14 years old
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – whether charges on indictment should be severed due to different complainants and different facts in issue
CRIMINAL LAW – EVIDENCE – Pre-trial application – admissibility of admission made by accused upon arrest – whether circumstances make it unlikely the truth of admission is adversely affected – where admission vague and no caution had yet been issued by arresting police officer – where accused is a 17-year-old Aboriginal person with an intellectual disability and a history of trauma – whether gratuitous concurrence part of circumstances affecting reliability of admission
New South Wales, Parliamentary Debates, Legislative Assembly,…
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.
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Details
AGLC
R v KQE [2022] ACTSC 69
Case
[2022] ACTSC 69
Decision Date
CaseChat Overview and Summary
In the matter of R v KQE, the accused stands charged with multiple offences of child sexual abuse. The case involves two different complainants and distinct instances of alleged misconduct. The court was tasked with addressing several key legal issues, including the admissibility of tendency evidence under section 101(2) of the Evidence Act 1995, the severance of charges due to different complainants and facts, and the admissibility of an admission made by the accused during arrest. The accused, a 17-year-old Aboriginal person with an intellectual disability and a history of trauma, contested the probative value of the evidence and the reliability of the admission, given the circumstances of the arrest and the nature of the admission itself.
The court's reasoning involved a thorough analysis of the statutory provisions, particularly sections 101(2) and 137 of the Evidence Act. The court considered whether the tendency evidence had significant probative value and whether there was a real risk that the jury would construe the evidence in a way that could lead to an unfair prejudice against the accused. The court found that the evidence of a sexual interest in children and a tendency to act on that interest did not have sufficient probative value to outweigh the risk of unfair prejudice, especially given that one instance of the uncharged conduct occurred when the accused was a minor. Additionally, the court examined the admissibility of the accused's admission, noting that the vagueness of the admission and the lack of a caution issued by the arresting officer, coupled with the accused's intellectual disability and history of trauma, rendered the admission unreliable.
The court concluded that the tendency evidence should be excluded due to the risk of unfair prejudice. Furthermore, the court did not find it necessary to sever the charges as they were not deemed to be so prejudicial as to warrant separate trials. The admission made by the accused was also deemed inadmissible due to its unreliability under the circumstances. The final orders reflect these findings, ensuring that the trial will proceed without the contested evidence, safeguarding the accused's rights and the fairness of the proceedings.
Orders
Orders of the court
See [104]
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The above interpretation of s 101(2) was prior to the most recent amendments to s 101(2). The language previously referred to “prejudicial effect” rather than “unfair prejudice”. However, the purpose of amending the wording was not intended to result in any change in the operation of the provision, with the object of amendment expressed as being to align the language of s 101(2) with that of s 137 (which refers to the Court’s power to exclude evidence on the basis of unfair prejudice) and remove doubts about interpretation as between those sections. In Stephen Odgers, Uniform Evidence Law (Thomson Reuters,16th ed, 2021) at 834-5 [EA.101.183] (Uniform Evidence Law), the learned authors helpfully include and reference the relevant extracts of the Second Reading Speech of the NSW Attorney-General Mark Speakman of the Evidence Amendment (Tendency and Coincidence) Bill 2020 (New South Wales, Parliamentary Debates, Legislative Assembly, 25 February 2020, (Mark Speakman, Attorney-General)) (NSW Second Reading Speech), when the equivalent amendments were made in NSW. It is unnecessary to repeat those extracts here. It suffices to note that given that there was not intended to be any change to interpretation of s 101(2) by using the words “unfair prejudice” instead of “prejudicial effect”, the ACT Court of Appeal’s broader interpretation of what constitutes “unfair prejudice” in DPP v DL would still apply. When considering the application of s 101(2) on the present circumstances, I will interpret the question as whether there is a real risk the jury will construe any cross-admitted evidence, or evidence of the uncharged conduct, so as to give it unfair weight or to reach an unfair conclusion in relation to one charge based on an emotional response to the evidence relating to another. On the arguments of the parties here, it is unnecessary to traverse the broader interpretation of s 101(2) as applied in DPP v DL in this jurisdiction. The Court must also perform the weighing exercise mandated by s 137 of the Evidence Act. In this case, that does not require a different consideration from the assessment and balancing exercise already required under the amended s 101. Counsel for the accused submits that the onus is on the Crown rather than the accused to establish the evidence has sufficient probative value to outweigh the risk of unfair prejudice, and I accept that the different onus can have significance. However, as will be seen below, on the arguments that have been made in the present application the question of onus does not produce any different result. Counsel for the accused does not dispute that the Crown gave reasonable notice in writing, as prescribed by s 97. I am satisfied that reasonable notice was given to the accused. The issue then becomes whether the evidence has significant probative value: see s 97(1)(b). The test for “significant probative value” is set out in Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [41] (Hughes), involving consideration of “two interrelated but separate” matters: