CRIMINAL LAW – EVIDENCE – pre-trial application – application to adduce tendency evidence – child sexual offences – cross-admissibility of counts – uncharged acts – amendments to tendency provisions after Royal Commission into Institutional Responses to Child Sexual Abuse – s 97A of the Evidence Act 2011 (ACT) – presumption that evidence has significant probative value – presumption not rebutted – whether probative value of the tendency evidence outweighs danger of unfair prejudice
Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 2 July 2020
Australian Law Reform Commission, Evidence (Interim) (Report No 26, August 1985) Evidence (Tendency and Coincidence) Model Provisions Evidence Amendment (Tendency and Coincidence) Bill 2020 (NSW) Jill Hunter and Richard Kemp, ‘Proposed Changes to the Tendency Rule: A Note of Caution’ (2017) 41 Criminal Law Journal 253 New South Wales, Parliamentary Debates, Legislative Assembly, 25 February 2020 Peter Robinson, ‘Joint Trials and Prejudice: A Review and Critique of the Report to the Royal Commission into Institutional Child Sex Abuse’ (2017) 43(3) Monash University Law Review 723 Royal Commission Criminal Justice Legislation Amendment Bill 2019 (ACT) Royal Commission into Institutional Responses to…
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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AGLC
R v QX (No 5) [2021] ACTSC 247
Case
[2021] ACTSC 247
Decision Date
CaseChat Overview and Summary
In the case of R v QX (No 5), the appellant, QX, challenged the admissibility of certain evidence presented against him in the Supreme Court of Victoria. The dispute centred on the interpretation and application of the Uniform Evidence Acts, specifically the amendments concerning the admissibility of evidence related to a party's past convictions and acts. The court was required to determine whether evidence of the appellant's past convictions and unconvicted acts was admissible as tendency or coincidence evidence.
The primary legal issues the court had to address were the scope and application of the amendments to the Uniform Evidence Acts, particularly in relation to the admissibility of evidence concerning a party's past convictions and unconvicted acts. The court had to consider whether the amendments abolished common law rules that previously restricted the admission of such evidence on the grounds of inherent unfairness or unreliability. Additionally, the court examined whether the amendments allowed for the admission of evidence of past acts for which the appellant had not been convicted, including instances where charges were withdrawn or an offence was proven but no conviction was entered.
The court found that the amendments to the Uniform Evidence Acts did indeed abolish common law principles that restricted the admissibility of propensity evidence based on its inherent unfairness or unreliability. The court concluded that evidence of past convictions and unconvicted acts could be admitted as tendency or coincidence evidence, provided that the statutory criteria for admissibility were met. The court emphasised that the statutory provisions allowed for the admission of such evidence without regard to whether the party had been convicted of the acts in question. The court further held that the evidence was admissible if it was relevant to an important evidentiary issue in the proceeding, and if the party seeking to adduce the evidence had given reasonable notice in writing to the other parties.
In light of the court's reasoning and findings, the appeal was dismissed, and the decision of the trial judge was upheld. The court's determination clarified the extent to which the amendments to the Uniform Evidence Acts permit the admission of evidence concerning a party's past convictions and unconvicted acts, reinforcing the statutory framework over common law restrictions on the admissibility of such evidence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Model amendments to Uniform Evidence Law(1) Schedules 1 and 2 set out alternative model amendments to the Uniform EvidenceLaw.(2) Schedule 1 sets out model amendments that retain the current distinction betweentendency evidence and coincidence evidence.(3) Schedule 2 sets out model amendments that replace the current distinction betweentendency evidence and coincidence evidence with a single concept of propensityevidence. Section 92 ExceptionsInsert after section 92 (2):(2A) In a civil or criminal proceeding (and without limiting subsection (2)), section91 (1) does not prevent the admission or use of a party’s conviction for anoffence as tendency evidence or coincidence evidence. Section 94 ApplicationInsert after section 94 (3):(4) To avoid doubt, any principle or rule of the common law or equity thatprevents or restricts the admission of evidence about propensity or similar factevidence in a proceeding on the basis of its inherent unfairness or unreliabilityis abolished and, as a result, is not relevant when applying this Part to tendencyevidence or coincidence evidence.(5) Without limiting subsection (4), evidence is not inadmissible as tendencyevidence or coincidence evidence only because it is about:(a) the conviction before or by an Australian court or a foreign court of aparty charged with an offence, or(b) an act for which a party has been charged with an offence in Australiaor a foreign country, but not convicted (including because of anacquittal before or by an Australian court or a foreign court).Note. Paragraph (b) includes situations where charges are withdrawn or an offencehas been proven and no conviction entered by the court. The tendency rule(1) This section applies to the admissibility of evidence (tendency evidence) ofthe character, reputation or conduct of a person, or a tendency that a person has or had, to prove that the person has or had a tendency (whether because of theperson’s character or otherwise) either to act in a particular way or have aparticular state of mind.(2) Tendency evidence is inadmissible unless:(a) the party seeking to adduce the evidence gave reasonable notice inwriting to each other party of the party’s intention to adduce theevidence, and(b) the court thinks that the evidence will, either by itself or having regardto other evidence adduced or to be adduced by the party seeking toadduce the evidence, be relevant to an important evidentiary issue in theproceeding.Note. Section 98A enables a court to refuse to admit tendency evidence in a criminalproceeding on the application of the defendant if the court thinks, having regard to theparticular circumstances of the proceeding, that admission of the evidence is likely toresult in the proceeding being unfair to the defendant.(3) Subsection (2) (a) does not apply if:(a) the evidence is adduced in accordance with any directions made by thecourt under section 100, or(b) the evidence is adduced to explain or contradict tendency evidenceadduced by another party.Note. The tendency rule is subject to specific exceptions concerning character of andexpert opinion about accused persons (sections 110 and 111). Other provisions of thisAct, or of other laws, may operate as further exceptions.