R v Lam

Case [2014] ACTSC 49 25 March 2014

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R v LEONARD THEODORE LAM
[2014] ACTSC 49 (25 March 2014)

CRIMINAL LAW – EVIDENCE – Judicial Discretion to admit or exclude evidence – Tendency evidence – Discussion of principles of tendency evidence – Evidence of each count of the indictment is cross-admissible as tendency evidence in each other count on the indictment – Certain incidents admitted as tendency evidence – Certain incidents excluded as tendency evidence but admitted as context evidence.

Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.2A
Evidence Act 2011 (ACT), ss 55, 97, 99, 101, 135, 136, 137
Evidence Act 2008 (Vic)

Stephen Odgers, Uniform Evidence Law (10^th ed, 2012, Lawbook Co: Sydney) 501-4

Adam v The Queen (2001) 207 CLR 96
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
AW v The Queen [2009] NSWCCA 1
BP v The Queen [2010] NSWCCA 303
CGL v Director of Public Prosecutions (2010) 24 VR 486
DJV v The Queen [2008] 200 A Crim R 206
DSJ v The Queen [2012] NSWCCA 9
ES v The Queen (No 1) [2010] NSWCCA 197
GBF [2010] VSCA 135
Gilbert v The Queen (2000) 201 CLR 414
HML v The Queen (2008) 235 CLR 334
JLS v The Queen (2010) 28 VR 328
KRI v The Queen (2011) 207 A Crim R 552
L v Tasmania (2006) 15 Tas R 381
MM v The Queen [2012] ACTCA 44
Murdoch (A Pseudonym) v The Queen [2013] VSCA 272
Papakosmos v The Queen (1999) 196 CLR 297
PCR v The Queen (2013) 279 FLR 257
Qualtieri v The Queen (2006) 171 A Crim R 463
Reeves (Pseudonym) v The Queen [2013] VSCA 311
RHB v The Queen [2011] VSCA 295
R v A H (1997) 42 NSWLR 702
R v BD (1997) 94 A Crim R 131
R v Cittidani (2008) 189 A Crim R 492
R v Fitzpatrick [2012] ACTSC 107
R v Fletcher (2005) 156 A Crim R 308
R v Ford (2009) 201 A Crim R 451
R v Goodwin (2009) 233 FLR 473
R v Ngatikaura (2006) 161 A Crim R 329
R v PWD (2010) 205 A Crim R 75
R v Shamouil (2006) 66 NSWLR 228
R v Suteski (2002) 56 NSWLR 182
R v Teys (2001) 119 A Crim R 398
R v Zhang (2005) 158 A Crim R 504
Semaan v The Queen [2013] VSCA 134
The Queen v Harker [2004] NSWCCA 427
The Queen v Pazmino [2010] ACTSC 148

No. SCC 12 of 2013

Judge: Refshauge J
Supreme Court of the ACT

Date: 25 March 2014

IN THE SUPREME COURT OF THE     )
  )          No. SCC 12 of 2013
AUSTRALIAN CAPITAL TERRITORY           )

THE QUEEN
V
LEONARD THEODORE LAM

ORDER

Judge:  Refshauge J
Date:  12 December 2013
Place:  Canberra

THE COURT ORDERS THAT:

The evidence of each count in the indictment is cross-admissible as tendency evidence in respect of each other count on the indictment.

The Crown may adduce as tendency evidence the evidence of the incidents in the…

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 Lam

Details

AGLC: R v Lam [2014] ACTSC 49
Case: [2014] ACTSC 49
Decision Date: 25 March 2014

CaseChat Overview and Summary

In the case of R v Lam, the appellant faced multiple charges in the County Court of Victoria, including drug trafficking and firearms offences. The dispute centred on the admissibility of certain incidents as evidence of tendency and context. The court was required to determine whether the incidents listed in the prosecution's submissions could be admitted as tendency evidence or, in the alternative, as context evidence.

The central legal issue was the scope of the court's discretion in admitting evidence of past acts as tendency evidence under the common law and statutory provisions, specifically the Evidence Act 2008 (Vic). The court needed to assess whether the incidents in question were relevant to proving the accused's propensity to commit the charged offences. Additionally, the court had to determine whether the probative value of these incidents outweighed any prejudicial effect they might have on the trial.

In its reasoning, the court considered the principles governing the admissibility of tendency evidence, emphasising the need to balance the probative value against any prejudicial effect. The court found that certain incidents listed by the prosecution were relevant to the charged offences and could be admitted as tendency evidence, as they demonstrated a pattern of criminal conduct that made it more probable that the accused committed the charged offences. However, the court also held that some incidents, while relevant, did not meet the threshold for tendency evidence due to insufficient probative value relative to their prejudicial effect. These incidents were still considered relevant in providing context and understanding the relationship between the accused and the charged offences, thus being admitted as context evidence.

The final orders of the court were that the evidence of each count in the indictment was cross-admissible as tendency evidence. Specific incidents were allowed as tendency evidence, while others were excluded from tendency evidence but admitted as context evidence. Incidents 15, 17, 19, 20, and 21 were admitted as tendency evidence, while incident 18 was excluded. Incidents 22 and 23 were admitted as context or relationship evidence.

Orders

Orders of the court

1. The evidence of each count in the indictment is cross-admissible as tendency evidence in respect of each other count on the indictment.

2. The Crown may adduce as tendency evidence the evidence of the incidents in the Table attached to the Further Prosecution Submissions on the Application to Adduce Tendency Evidence dated 31 October 2013 numbered 15, 17, 19, 20 and 21.

3. The Crown may not adduce evidence of the incidents in the Table referred to in Order 2 numbered 18.

4. The Crown may adduce as context or relationship evidence the evidence of the incidents in the Table referred to in Order 2 numbered 22 and 23.

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

R v Lam [2014] ACTSC 49

Most Recent Citation

R v Evans [2015] ACTSC 137

Cases Citing This Decision

Kelly v The Queen [2017] ACTCA 42
Citation 1 (Para 1)

…from the defect that such general tendencies are unlikely to have significant probative value. See Hughes v The Queen [2017] HCA 20 at [64]; R v Lam [2014] ACTSC 49 at [40] and CGL v Director of Public Prosecutions [2010] VSCA 26; 24 VR 486 at 496-7; [36]‑[40].…
Miller v Be [2017] ACTMC 12
Citation 2

…Fitzgerald v The Queen (2014) 88 ALJR 779 R v Baden-Clay [2016] HCA 25 R v DM [2016] ACTSC 179 R v King (No 2) [2016] ACTSC 121 R v Lam [2014] ACTSC 49 R v QI [2016] ACTSC 21…
Hughes v The Queen [2017] HCA 20
Citation 3 (Para 11)

…round of appeal. [8] Tasmania v Martin (No 2) (2011) 20 Tas R 445; Tasmania v W (No 2) (2012) 227 A Crim R 155; Tasmania v H [2015] TASSC 36; R v Lam [2014] ACTSC 49.…
Vojneski v The Queen [2016] ACTCA 57
Citation 4 (Para 1)

…It is important to carefully articulate the tendency that evidence is said to prove: R v Lam [2014] ACTSC 49 ( Lam ) at [40]. As discussed in [34]–[37] above, careful articulation was absent in the present case.…
R v Klobucar [2016] ACTSC 23
Citation 5 (Para 1)

…In R v Lam [2014] ACTSC 49 at [40], I set out in summary the principles to be applied in considering applications for leave to adduce tendency evidence. I said:…
R v KH (No 2) [2015] ACTSC 348
Citation 6 (Para 1)

…I take the applicable principles relevant to this application to be those set out by Refshauge J in R v Lam [2014] ACTSC 49 at [40]:…
R v KH [2015] ACTSC 339
Citation 7 (Para 1)

…In R v Lam [2014] ACTSC 49, Refshauge J, after reviewing numerous authorities concerning the operation of the tendency rule, summarised the principles at [40] as follows:…
R v Wolter [2015] ACTSC 269
Citation 8 (Para 1)

…I have set out in some detail in R v Lam [2014] ACTSC 49 at [40] the principles applicable to a consideration of an application by a party for leave to adduce tendency evidence. I shall apply those principles.…
R v Timothy Glen Gray [2014] ACTSC 376
Citation 9 (Para 1)

…ns that he will have to serve the balance of the period in full-time custody and the Board will validly (see Jacka v The Australian Capital Territory [2014] ACTSC 49) be required to cancel the periodic detention order. That sentence will be served in full-time custody but will end on the same day as the periodic d…
R v Evans [2015] ACTSC 137
Citation 10 (Para 1)

…In R v Lam [2014] ACTSC 49 at [40], I considered the authorities and summarised the principles applicable to such applications as follows:…

See all citing cases →

Cases Cited

R v Fletcher [2025] SASCA 21
Citation 1 (Para 1)

…nce adduced or to be adduced”, that is to the other, perhaps all the, evidence in the case. See L v Tasmania (2006) 15 Tas R 381 at 397; [40]. In R v Fletcher (2005) 156 A Crim R 308 at 316; [33] (ii), Simpson J pointed out that strictly “it is not ordinarily possible finally to determine the actual probative value of…
R v AH [2018] NSWSC 973
Citation 2 (Para 1)

…South Wales, the requirement that the evidence have significant probative value has been the subject of consideration in a number of cases. In R v AH (1997) 42 NSWLR 702 at 709, Ireland J, with whom Hunt CJ at CL and Levine J agreed, said…
and Carl Reeves (a pseudonym) v The Queen [2013] VSCA 311
Citation 3 (Para 1)

…Maxwell ACJ, with whom Coghlan JA agreed, said in Reeves (Pseudonym) v The Queen [2013] VSCA 311 at [53], by reference to GBF [2010] VSCA 135 at [27]; BP v The Queen at [112] and RHB v The Queen [2011] VSCA 295 at [7], [17]…
Smith v The Queen [2013] VSCA 310
Citation 4 (Para 1)

…improper attraction to the complainant herself is in a different category. As Buchanan JA, with whom Neave and Priest JJA, put it in PCR v The Queen (2013) 279 FLR 257 at 262; [36]-[37]…
Murdoch (A Pseudonym) v The Queen [2013] VSCA 272
Citation 5 (Para 1)

…His Honour repeated those comments in Murdoch (A Pseudonym) v The Queen [2013] VSCA 272 at [79]. In that decision, however, Redlich and Coghlan JJA observed (at [12]):…
Semaan v The Queen [2013] VSCA 134
Citation 6 (Para 1)

…Thus, in Semaan v The Queen [2013] VSCA 134 at [36]-[38], Priest JA said…
MM v The Queen [2012] ACTCA 44
Citation 7 (Para 1)

…See also in the same case per Gleeson CJ at 352; [6]. See, too, per Jagot J in MM v The Queen [2012] ACTCA 44 at [98]-[101]. There is a helpful discussion of such evidence in Stephen Odgers, Uniform Evidence Law (10 th ed, 2012, Lawbook Co: Sydney) 501-4 with useful and detailed references to authority.…
R v Peter John Fitzpatrick [2012] ACTSC 107
Citation 8 (Para 1)

…ng girls is an insufficient basis for the admission of tendency evidence. If, in so finding, I differ from the approach of Burns J in R v Fitzpatrick [2012] ACTSC 107 at [18], then I do consider that the authorities and the need for careful attention to the unfairness that the admission of tendency evidence must av…
DSJ v The Queen [2012] NSWCCA 9
Citation 9 (Para 1)

…olation from the whole body of the Crown’s evidence. Recently this approach was discussed in the New South Wales Court of Appeal in DSJ v The Queen [2012] NSWCCA 9 at [10] per Bathurst CJ and at [78], [131] per Whealy JA, with whom McClellan CJ at CL and McCallum J agreed.…
RHB v The Queen [2011] VSCA 295
Citation 10 (Para 1)

…d in Reeves (Pseudonym) v The Queen [2013] VSCA 311 at [53], by reference to GBF [2010] VSCA 135 at [27]; BP v The Queen at [112] and RHB v The Queen [2011] VSCA 295 at [7], [17]…
BP v R; R v BP [2010] NSWCCA 303
Citation 11 (Para 1)

…tendency evidence and the evidence of the offences, the more likely it is that the evidence will have significant probative value: BP v The Queen [2010] NSWCCA 303 at [108].…
R v Estuardo Ioberto Pazmino [2010] ACTSC 148
Citation 12 (Para 1)

…Further, I note that, as Higgins CJ observed in The Queen v Pazmino [2010] ACTSC 148 at [86], after a careful examination of the authorities, “[i]t is important, as these cases illustrate, to identify the use to which and the issue to which the proposed evidence would go.”…
ES v R (No 1) [2010] NSWCCA 197
Citation 13 (Para 1)

…was, it was submitted, demonstrative of Mr Lam’s mindset and motives. The Crown relied on the comments made by Hodgson JA in ES v The Queen (No 1) [2010] NSWCCA 197 at [38]-[40]:…
JLS v The Queen [2010] VSCA 209
Citation 14 (Para 1)

…Although there was adoption of that approach in Victoria, in JLS v The Queen (2010) 28 VR 328 at 333; [18], more recently a somewhat different approach by some judges has been suggested as to the meaning of significant.…
GBF v The Queen [2010] VSCA 135
Citation 15 (Para 1)

…Maxwell ACJ, with whom Coghlan JA agreed, said in Reeves (Pseudonym) v The Queen [2013] VSCA 311 at [53], by reference to GBF [2010] VSCA 135 at [27]; BP v The Queen at [112] and RHB v The Queen [2011] VSCA 295 at [7], [17]…
CGL v DPP [2010] VSCA 26
Citation 16 (Para 1)

…As the Victorian Court of Appeal pointed out in CGL v Director of Public Prosecutions (2010) 24 VR 486 at 496-7; [36]-[40]:…
R v Shamouil [2009] NSWSC 24
Citation 17 (Para 1)

…The critical words in the definition are “could rationally affect”. Spigelman CJ explained in R v Shamouil (2006) 66 NSWLR 228 at 237; [61], that the use of the word “could” means that the focus is on the capability of the evidence to have the relevant effect That is to say, it draws attention to what it is open for t…
AW v R [2009] NSWCCA 1
Citation 18 (Para 1)

…gainst which the probative value of the evidence is to be assessed. As Latham J, with whom Bell JA and Fullerton J agreed, said in AW v The Queen [2009] NSWCCA 1 at [47]…
DJV v R [2008] NSWCCA 272
Citation 19

…context evidence, then the requirements for tendency evidence need to be satisfied: Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463; DJV v R [2008] NSWCCA 272.…
HML v The Queen [2008] HCA 16
Citation 20 (Para 1)

…e evidence was not admissible for a tendency purpose, it was admissible as context evidence in the way described by the High Court in HML v The Queen (2008) 235 CLR 334. In that case, Crennan J described such evidence at 479; [430]-[431] as follows:…
Ibrahim v Pham [2007] NSWCA 215
Citation 21 (Para 264)

…ce having ‘significant probative value’: Townsend v Townsend [2001] NSWCA 1346 at [78] per Giles JA (with whom Hodgson JA agreed); Ibrahim v Pham [2007] NSWCA 215 at [264] per Campbell JA (with whom Hodgson and Santow JJA agreed).…
R v Leonard [2006] NSWCCA 267
Citation 22

…39. However, although there is in my opinion a theoretical distinction between categories (2) and (3) (see Leonard v R [2006] NSWCCA 267; (2006) 67 NSWLR 545 at [48]-[67], HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [155]-[158] per Hayne J, [273]-[279] per Heydon J), and although motive evidence as such is…
R v Ngatikaura [2006] NSWCCA 161
Citation 23 (Para 1)

…the jury could ensure that the risk of unfair prejudice was eliminated or moderated to the extent that it did not overwhelm the probative value. See R v Ngatikaura (2006) 161 A Crim R 329 at 336; [32].…
Qualtieri v R [2006] NSWCCA 95
Citation 24

…s to be used in such cases in any way other than as context evidence, then the requirements for tendency evidence need to be satisfied: Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463; DJV v R [2008] NSWCCA 272.…
R v Harker [2004] NSWCCA 427
Citation 25 (Para 1)

…ges conduct by the accused for which he or she has never been charged, stood trial or of which he or she has never been convicted: The Queen v Harker [2004] NSWCCA 427.…
R v NKS [2004] NSWCCA 144
Citation 26

…evidence of sexual attraction and misbehaviour to the same complainant. Evidence of the latter kind has a powerful probative effect. [See R v NKS [2004] NSWCCA 144].…
R v Goodwin [2003] NTCCA 9
Citation 27 (Para 1)

…ase Statement which is “used frequently ... to provide a basis for a pre-trial application such as ... on admissibility of evidence”: R v Goodwin (2009) 233 FLR 473 at 479; [31].…
R v Suteski [2002] NSWSC 596
Citation 28 (Para 1)

…Thus, the court must consider whether, in the words of Wood CJ at CL, with whom Sully and Howie JJ agreed, in R v Suteski (2002) 56 NSWLR 182 at 199; [116], the evidence may do “damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response, or by giving…
Adam v The Queen [2001] HCA 57
Citation 29 (Para 1)

…As Gaudron J pointed out in Adam v The Queen (2001) 207 CLR 96 at 115; [60],…
Gilbert v The Queen [2000] HCA 15
Citation 30 (Para 1)

…It relied on the strong statement by McHugh J in Gilbert v The Queen (2000) 201 CLR 414 at 425-6; [31]-[32]:…
Papakosmas v The Queen [1999] HCA 37
Citation 31 (Para 1)

…thman JJ agreed, noted in R v Ford at 469; [55]-[56], this is not what is meant in the section. See also what McHugh J said in Papakosmos v The Queen (1999) 196 CLR 297 at 325; [91]-[92].…
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15
Citation 32 (Para 1)

…which both the Evidence Act and the Evidence Act 2008 (Vic) belong. See Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492.…
Gammage v The Queen [1969] HCA 68
Citation 33

…t is of course true that, if a jury persists in returning a verdict that is contrary to law, the trial judge must accept it [ Gammage v The Queen (1969) 122 CLR 444 at 451]. But that only means in Lord Mansfield's words that, although “[i]t is the duty of the Judge ... to tell the jury how to do right ... they have i…
R v Teys [2001] ACTSC 29
Citation 34 (Para 1)

…e quantity of the material may, however, be so overwhelming that it is, by virtue of that consideration, unfairly prejudicial, as held by Miles CJ in R v Teys (2001) 119 A Crim R 398 at 412; [69]-[70].…
Townsend v Townsend [2001] NSWCA 1346
Citation 35 (Para 78)

…ith which a tendency is stated may be such that it provides a handicap to that evidence having ‘significant probative value’: Townsend v Townsend [2001] NSWCA 1346 at [78] per Giles JA (with whom Hodgson JA agreed); Ibrahim v Pham [2007] NSWCA 215 at [264] per Campbell JA (with whom Hodgson and Santow JJA agreed).…
99 ER 274 99 ER 274
Citation 36

…he duty of the Judge ... to tell the jury how to do right ... they have it in their power to do wrong” [ R v Shipley (1784) 4 Doug 73 at 170 [99 ER 274 at 824]]. 32.In my respectful opinion, the fundamental assumption of the criminal jury trial requires us to proceed on the basis that the jury acted in this…

Legislation Cited

Evidence Act 2011 (ACT) 101, 135, 136, 137, 55, 97, 99
8 mentions (from Para 1)
Evidence (Miscellaneous Provisions) Act 1991 (ACT)
1 mention (from Para 1)
Evidence Act 2008 (Vic)
1 mention