R v PW - [2014] ACTSC 121

R v PW
[2014] ACTSC 121 (13 May 2014)

CRIMINAL LAW – EVIDENCE – Application to adduce tendency evidence – two charges of committing an act of indecency – whether probative value of evidence outweighs prejudice to accused

Evidence Act 2011 (ACT), ss 97, 101

EX TEMPORE JUDGMENT

No. SCC 208 of 2013

Judge: Burns J
Supreme Court of the ACT

Date: 13 May 2014

IN THE SUPREME COURT OF THE     )          No. SCC 208 of 2013
  )
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN: REGINA
Applicant
v

AND:PW
Respondent

ORDER

Judge:Burns J
Date:13 May 2014
Place:Canberra

THE COURT ORDERS THAT:

The Crown’s application to lead tendency evidence is dismissed.

The accused is charged with two counts of committing an act of indecency on a child under ten on separate occasions in 2011. The Crown has made an application to adduce tendency evidence pursuant to s 97 of the Evidence Act 2011 (ACT). The Notice of Intention to Adduce Tendency Evidence dated 14 January 2014 states the evidence sought to be led as tendency evidence is to prove:
That the accused had a tendency to have a particular state of mind, namely:
(a)To have a sexual attraction to [the complainant].
(b)To gain the affection of [the complainant] by tickling her.
(c)To disguise his inappropriate touching of [the complainant] by tickling her.
That the accused had a tendency to act in a particular ways, namely:
(d)To act on his sexual attraction to [the complainant].
(e)To tickle [the complainant] and touch her genital area.
I accept that the material that the Crown proposes to adduce by way of tendency evidence, which are described as uncharged acts in the tendency notice, is relevant evidence in that, if accepted, it is capable of rebutting a suggestion that the acts relied upon by the Crown as forming the two charges on the indictment occurred coincidentally or, at least, accidentally.
The tendency rule is set out in s 97 of the Evidence Act2011 (ACT). That section provides that evidence of a tendency that a person has or had is not admissible to prove that the person has or had a tendency to act in a particular way, unless reasonable notice is given. There is no issue about notice in the current proceedings. Secondly, the section requires that the court think that the evidence will either by itself or having regard to other evidence presented or to be presented by the parties seeking to present the evidence have significant probative value.
In my opinion, the material which the Crown proposes to lead with respect to the uncharged acts does not have the type of detail that allows me to determine that it has significant probative value.
In addition, at least some of the evidence is by way of hearsay. I accept that such material is often admitted in sexual offence proceedings as evidence relevant to complaint. However, that does not mean that in the present circumstances where the evidence is sought to be led as tendency…

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 PW

Details

AGLC: R v PW [2014] ACTSC 121
Case: [2014] ACTSC 121
Decision Date: 13 May 2014

CaseChat Overview and Summary

The case of R v PW involved the Crown seeking to adduce evidence of the accused's previous acts of indecency to establish a pattern of behaviour. The accused opposed the application, arguing that the probative value of such evidence did not outweigh the prejudicial impact it would have on the jury. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the probative value of the proposed tendency evidence outweighed the prejudicial impact it would have on the accused. The court was required to consider the principles established in the case of R v Z, which outline the conditions under which tendency evidence can be admitted. Specifically, the court had to assess whether the evidence was relevant to a matter that was substantially in issue between the parties and whether its probative value outweighed any prejudicial effect it might have on the accused.

In delivering the judgment, the court found that while the evidence of previous acts of indecency was relevant, the prejudicial impact it would have on the accused outweighed its probative value. The court noted that the evidence was not necessary to establish a matter that was substantially in issue between the parties, and that the risk of unfair prejudice to the accused was significant. The court held that the probative value of the evidence did not sufficiently outweigh the prejudicial impact it would have on the accused, and accordingly dismissed the Crown’s application to lead the evidence.

As a result, the Crown was not permitted to present the evidence of the accused's previous acts of indecency to establish a pattern of behaviour. The court's decision underscored the importance of balancing the probative value of tendency evidence with the potential for prejudice to the accused, in line with established legal principles.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.