R v PW
[2014] ACTSC 121
•13 May 2014
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 evidence that the provisions of s 97 do not have to be complied with. As I have said, it appears to me that the evidence does not have significant probative value.
Even if the evidence contrary to my finding did have significant probative value, before it can be admitted it must still satisfy the provisions of s 101 of the Evidence Act 2011 (ACT). That provides that tendency evidence about a defendant that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
The prejudicial effect of the Crown leading the evidence of the uncharged acts, which it would propose to lead, would have very significant prejudicial value and, in my view, that prejudicial value would outweigh any probative value of the proposed evidence.
As such, I do not propose allowing the Crown to lead evidence of the uncharged acts as tendency evidence.
The Crown also seeks to lead evidence with respect to each of the charges against the accused as tendency evidence with respect to the other charge.
That evidence, in my opinion, does have significant probative value and as such it would satisfy the test under s 97. However, bearing in mind that there are only two charges and also bearing in mind the nature of the evidence I am not satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have with respect to the defendant.
Of course, the jury will have evidence before it in the course of the joint hearing of the two charges relating to both incidents, but the jury will be told, ultimately, that it needs to consider each of the charges separately.
The prejudicial effect of the jury being allowed to use the evidence of one with respect to one charge as tendency evidence with respect to the other is likely to be very significant and, in my view, the probative value of such a course does not outweigh the prejudicial effect.
As such the application to lead tendency evidence will be refused.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 4 June 2014
Counsel for the Crown: Mr T Hickey
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the Accused: Mr J Pappas
Solicitor for the Accused: Ben Aulich & Associates
Date of Hearing: 13 May 2014
Date of Judgment: 13 May 2014
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