R v Sean (a pseudonym) (No 2)

[2023] ACTSC 132

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Sean (a pseudonym) (No 2)
Citation:	[2023] ACTSC 132
Hearing Date	12 April 2022
Decision Date:	26 April 2022
Reasons Date:	30 May 2023
Before:	McCallum CJ
Decision:	Publication of reserved reasons for dismissing Crown’s
applications dated 28 February 2022 and 6 April 2022 seeking to rely on tendency evidence.
Catchwords:	EVIDENCE – Tendency Evidence – Application by Crown to rely on tendency evidence in a criminal trial against a young person – where accused charged with murder by stabbing – evidence
suggesting a tendency to act disproportionately by using an offensive weapon, or threatening to use an offensive weapon, to
inflict serious injury – evidence suggesting a tendency to have an interest in the unlawful possession of knives – where accused one
of seven young men involved in an attack on four young men
including the deceased – where identification of the stabber will be the central issue in the trial – absence of evidence excluding
the existence of the same tendencies in the other six young men
– difficulty of discerning tendency in a young person – unfair
prejudice
Legislation Cited:	Evidence Act 2011 (ACT) ss 55, 97, 101
Cases Cited:	Hughes v The Queen [2017] HCA 20; 263 CLR 338 IMM v The Queen [2016] HCA 14; 257 CLR 300 Parkinson v Alexander [2017] ACTSC 201 TB v R [2019] NSWCCA 224 Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370
Parties:	The Queen (Crown) Wren Sean (a pseudonym) (Accused)
Representation:	Counsel
R Christensen SC w/ M Howe (Crown)
D Barrow (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown)
Hugo Law Group (Accused)
File Number:	SCC 132 of 2021
McCALLUM CJ:

1.       The accused, a young person referred to in these proceedings by the pseudonym Wren

Sean, was arraigned on an indictment containing one count of murder and one count

of intentionally inflicting grievous bodily harm. On 12 April 2022, I heard two

applications by the Crown (dated 28 February 2022 and 6 April 2022) seeking to

adduce tendency evidence in relation to the accused. At the commencement of the

trial on 26 April 2022, I dismissed both applications, reserving my reasons. These are

my reasons for those rulings.

2.       The charges arose out of a fight between two groups of youths at the Weston Creek

Skate Park on 26 September 2020. The fight was arranged between two of the men,

who were not previously known to each other, during an argument on Snapchat that

escalated quickly and irrationally. The groups agreed to meet at the skate park. Eleven

young men took part in the fight, most of whom were teenagers. They were divided

into a group of seven on one side and a group of four on the other. The Crown case

was that the accused, who was one of the seven, stabbed two of the men in the group

of four during the fight. One survived. The other died at the scene.

3.       There was no dispute that the two victims were stabbed during the fight or that the

deceased died as a result of the stab wounds inflicted during the fight. The central

issue was who stabbed them. All of the participants in the group of seven apart from

the accused made statements to the police within days after the fight but no one

claimed to have witnessed the stabbing of the deceased. The other victim did not

realise that he had been stabbed until later. His evidence did place the accused near

him at the relevant time, but he did not purport to identify the accused as the stabber.

The Crown case that it was the accused who stabbed both young men was entirely

circumstantial.

4.       It was uncontroversial that the accused was one of the participants in the attack upon

the group of four (as were six others). The evidence against the accused included DNA

evidence, fingerprint evidence and textile evidence. None of that evidence definitively

connected him to either stabbing. There was evidence that he had a knife tucked down

the front of his pants after the fight and evidence of admissions he allegedly made at

that time as to having stabbed one of the victims. There was evidence in the form of

statements from each of the other participants in the fight that none of them had or

used a knife during the fight. The Crown also relied on certain acts of the accused after

the fight as evidence of a consciousness of guilt.

The tendency evidence sought to be presented

5.       The proposed tendency evidence was set out in affidavits of Michael Gemmell and

Estelle Narouz affirmed on 28 February 2022 and 6 April respectively, as well as an

additional affidavit of Ms Narouz affirmed on 11 April 2022. The alleged tendencies of

the accused specified for the purpose of the applications were:

(1) A tendency to act disproportionately by using an offensive weapon, or

threatening to use an offensive weapon, to inflict serious injury (“violent

tendency”); and

(2)	A tendency to have an interest in the unlawful possession and use of knives
(“knife tendency”).

6.       The applications identified seven incidents or circumstances sought to be relied upon

to prove those alleged tendencies, as follows:

(1)	The brick incident: on 27 October 2020 at Mount Stromlo High School, the
accused walked towards a seated classmate. The classmate did not see the
accused approach him as he was looking at his phone. The accused said “oi
cunt” before hitting the classmate on the head with a brick at least once. As a
result, the classmate suffered significant wounds to his head.
(2)	The rocky road incident: on 27 October 2021, the accused was at a private
residence when he began arguing with his parents as he was unable to find a
knife to cut up some rocky road. A family friend had hidden all the knives from
him. As the accused searched for the knives, he threatened the family friend
and threw furniture at her as she sought refuge in a different room with the
accused’s mother. The accused then argued with his father before leaving the
house and aggressively approached a neighbour. The neighbour’s husband
sought to intervene. The accused punched him in the face before being
restrained by other neighbours. While he was being restrained, the accused
made threats that he would get a knife and kill all those involved.
(3)	The rap lyrics: upon seizure and investigation of the accused’s phone by police,
rap lyrics referencing the violent use of a knife were found in the “notes” section.
These lyrics were set out by the Crown in truncated form as follows:

• ‘I don't need a reason I just stab up these cunts for fun ... spit in the face of his

mum just diced up her fucking son ain't playing gold but I just scored a holw in

one ...’

• ‘ ... blade in ya head I swear it won't bend it or blade to ya mouth but I ain't no

dentist...’

• ‘they say why you so angry I chop em up gangrene they run when I back out

the hand ting [sic] I'm a chief like Gordon Ramsey [sic]’

• ‘I'm not trying to fight I'll put a hole in his windpipe ... I pull out my Rambo turn

man mango when I carved a hole in his neck’.

•	‘Erching my hood big shank on me dip a man down for talking sweet fuck all
the verbal just stab don't aim for your knee Ill catch me an body at age fifteen been holding a shive since age thirteen ...'

(4)	The knife photo: investigations of the accused’s phone also revealed a saved
image of a series of knives with a caption imposed that read, “Cool designs”.
(5)	The Cooleman Court incident: on 10 August 2020, the accused was with friends
in Cooleman Court when he produced a knife from the front of his pants and
used it to cut some “no smoking” signs from a wall. A photo taken on that day
depicts the accused with a knife down the front of his pants.
(6)	The house fight: on around 29 May 2020, the accused became involved in an
altercation with another man in the driveway of the accused’s house. The
accused returned to his house and obtained a kitchen knife before attempting
to confront the man with it. The accused’s father intervened and took the
accused back inside the house.
(7)	The knives in the bag: a medical record made at some point in 2020 included a
note suggesting that the accused’s parents believed he kept a knife or knives in
his bag.

7. Section 97(1) of the Evidence Act 2011 (ACT) provides:

97     The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a

person has or had, is not admissible to prove that a person has or had a tendency

(whether because of the person’s character or otherwise) to act in a particular way, or

to have a particular state of mind unless—

(a) the party seeking to present the evidence gave reasonable notice in writing to

each other party of the party’s intention to present the evidence; and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.

8. The Crown gave reasonable notice in accordance with s 97(1)(a) of its intention to

present the evidence. The tendency notices were drawn with commendable specificity

and identified tendencies which, if established, would plainly be capable of informing

the isolated question whether a person having those tendencies might have stabbed a

person on a particular occasion.

9.       In assessing the probative value of the evidence, the Court must operate on the

assumption that the evidence is accepted: IMM v The Queen [2016] HCA 14; 257 CLR

300 at [48] (French CJ, Kiefel, Bell and Keane JJ).

Conclusion as to the admissibility of the evidence

10.     The central issues raised by the applications were whether, in the circumstances of the

Crown case, the evidence would have significant probative value as required by

s 97(1)(b) of the Evidence Act and, if so, whether the evidence satisfied the additional

hurdle in s 101 of the Act, which required the Crown to persuade the Court that the

probative value of the evidence outweighed the danger of unfair prejudice to the

accused.

11. I concluded that the evidence failed both tests. As to the requirement of s 97(1)(b), I

had reservations as to the probative value that can properly be assigned to evidence

of an apparent tendency in a person as young as the accused, having regard to the

dynamic and often volatile nature of adolescent behaviour (the accused who was 15 at

the time of the skate park incident).

12.     Further, some of the tendency evidence concerned events that occurred after the

alleged commission of the offences and during a period when the accused was subject

to strict bail conditions and the stress of facing unresolved criminal charges. I was

concerned that those stresses may have distorted his behaviour so as to taint any

inference that might otherwise be able to be drawn as to any tendency he might have

had at an earlier point in time.

13.     Finally, noting that the central issue in the trial would be whether the accused or some

other member of a group of seven stabbed the victims, I considered that the evidence

could not hold “significant probative value” unless it was to be presented together with

other evidence excluding like tendencies in each other member of that group.

14.     Even if I had assessed the evidence to have significant probative value, I would have

excluded the evidence because I was not satisfied that its probative value outweighed

the danger of unfair prejudice to the accused which, under s 101(2) of the Act, is a

condition of its use by the prosecution in a criminal trial.

Reasons for excluding the evidence

Tendencies in adolescents

15.     The probative value of tendency evidence rests on an assumption that the existence of

a tendency to act or think in a certain way is likely to produce repetition. In Hughes v

The Queen [2017] HCA 20; 263 CLR 338, the majority (Kiefel CJ, Bell, Keane and Edelman JJ) analysed that issue by reference to the unusual nature of the tendency (in

that case, the inclination of a mature adult male to engage in sexual conduct with

underage girls and a willingness to act upon that inclination: at [57]). It may readily be

accepted that a tendency to act in such a way and have such a state of mind is unusual

in mature adult males. The majority in Hughes framed this as “a matter of ordinary

human experience”: at [57].

16.     My concern in the present case was that the predictability of repetition in the acts and

states of mind of adolescents is significantly less reliable. It is well understood that

adolescents are in the process of brain development and have less predictable

emotional and behavioural regulation than mature adults. There is also a temporal

factor here. An adolescent will have had little opportunity to develop independent

tendencies, usual or unusual. The accused in the present case was squarely in that

tumultuous period of growth. I took the view that I should exercise considerable caution

before accepting that evidence of his past acts and inclinations had significant

probative value in predicting his behaviour on another occasion.

17.     The Crown submitted that, in this particular case, the question of whether the accused

was of sufficient age to possess developed tendencies was a matter for the jury to

assess using their range of life experience and common sense. The Crown relied in

that context on the decision of the Court of Appeal in Vojneski v The Queen [2016]

ACTCA 57; 262 A Crim R 370. As here, that was a case involving an allegation of

murder based on circumstantial evidence, including tendency evidence, to identify the

accused as the perpetrator of the offence. The Court held at [36]:

Of themselves, tendency (a) (the tendency “to become quickly aroused to anger and to act violently when angered”) and tendency (d) (the tendency “to act violently when under the

influence of alcohol and/or marijuana”) are not distinctive or “particular” ways of behaving.

On the other hand, a tendency to become quickly aroused to anger (or, as the trial judge put

it, “to become irrationally or disproportionately angry”), and then to use knives to threaten or

inflict harm on people or objects is such a tendency.

18.    Tendency evidence had been admitted in the appellant’s trial of eight incidents

occurring before the alleged offending, the first of which related to an incident when the

accused was only 17 years of age. The Crown submitted in the present case that this

was significant as it demonstrated judicial acceptance that an incident occurring during

an accused’s youth could be evidence of a tendency almost identical to the first

tendency sought to be adduced in the present case.

19.     However, in Vojneski, the alleged tendency was supported by evidence of the seven

further acts committed by the accused as an adult, spanning at least into his late

twenties. It was that consistency over a long period of time that gave the tendency its

probative force. The tendency evidence in the present case is confined to events that have occurred during the accused’s adolescence. The reasoning in Vojneski can be

distinguished on that basis.

20.     The Crown contended that the alleged tendency here to have a disproportionately

violent response is not typical of an adolescent. However, as a matter of “ordinary

human experience” (Hughes at [57]), or at least the ordinary experience of the courts,

I do not think it can be said to be unusual in the way a paedophilic interest in young

girls is unusual. As already indicated, I would take it to be a matter of ordinary human

experience that many adolescents experience difficulties in regulating their emotions

and responses due to the nature of brain development during puberty.

Post-offence conduct

21.     A separate concern I held as to the probative value of the tendency evidence was that

some of the incidents relied upon occurred after the accused had been charged with

the present offences. It is accepted that post-offence conduct can, in an appropriate

case, establish a relevant tendency. However, as observed by Refshauge J in

Parkinson v Alexander [2017] ACTSC 201 at [55], such conduct does not have the

same “predictive capacity” as past conduct.

22.     The use of tendency evidence retrospectively was approved by the New South Wales

Court of Criminal Appeal in TB v R [2019] NSWCCA 224. The applicant in that case

appealed against his conviction for child sexual assault offences against two separate

victims. The first offences were alleged to have been committed when the applicant

was around 20, the second around 15 years later. The tendencies relied upon in that

case were typical of those often permitted in child sex cases. They included a tendency

to have a particular state of mind, “namely a sexual interest in female children in the

age range of eight to 13 years” and a tendency to act on that sexual interest: at [17].

The trial judge allowed the Crown to rely on the evidence of the second victim as

tendency evidence in support of the charges concerning the first. One of the grounds

of appeal contended that it was not logical to consider that the later acts showed a

retrospective tendency: at [90].

23.     After considering other decisions of the Court in which evidence of later child sexual

assaults was admitted to show a retrospective tendency, the Court held at [103] (White

JA, with Harrison and R A Hulme JJ agreeing):

There is no reason in principle that evidence of [the second victim] could not be used to establish that when the applicant was younger he had a particular state of mind as identified above and a tendency to act on that state of mind. The lapse of years between the offending alleged in relation to [the first victim] and the offending in relation to [the second victim]

neither detracts from the probative value of their evidence as to the applicant’s state of mind,

nor as to their evidence as to his tendency to act on that state of mind.

24.     In my view, it is significant that those were cases involving allegations of child sexual

assault. It may readily be accepted (and indeed the High Court did accept in Hughes)

that the conduct of such offenders displays a tendency that, as a matter of ordinary

human experience, is unusual. Furthermore, it is the experience of the courts that such

a tendency is likely to produce repetition. For the reasons already explained, I consider

that the violent tendencies of adolescents require more cautious analysis.

25.     In the present case, I was concerned that the very fact of having been charged with the

offences and subject to highly restrictive bail conditions may have influenced the

accused’s subsequent behaviour. In particular, those pressures may have contributed

to his demonstrations of anger or frustration, reducing the predictive ability of the

alleged tendency to act disproportionately in determining the likelihood of his having

committed the skate park offences.

Consideration of the accused in isolation

26.     Those concerns aside, my principal reason for dismissing the applications was that the

tendency evidence, which concerned only the accused, did not have significant

probative value in identifying him as the one of seven who stabbed the victims. In the

circumstances I have described, the tendency evidence would only have significant

probative value if it was presented together with evidence that the other young persons

involved in the fight did not have the same tendencies.

27.    The Crown relied on incidents 1, 2 and 6 to establish a tendency “to act

disproportionately by using an offensive weapon, or threatening to use an offensive

weapon, to inflict serious injury”. I have explained my reservations in accepting that to

be the case. That is not a reflection of my assessment of the probative force of the

evidence but rather my concerns owing to the accused’s young age and stage of

cognitive and emotional development.

28.     I accept more readily that the evidence of incidents 2, 3, 4, 5, 6 and 7 establishes that

the accused had an interest in the unlawful possession and use of knives, as contended

by the Crown. However, the Crown accepted that this was not unique to the accused

and that there was “a level of interest in knives by these young males across the entire

age group and across the participants”.

29.    Senior Counsel for the Crown submitted that the accused had “a more distinct

behavioural tendency” in the use of “implements including knives in the course of a

disproportionate response to an incident”. However, that was not established on the

evidence. The tendencies of the other six members of the group that attacked the

victims was largely unknown. To the extent that the argument touched on that issue, it rather suggested that at least one other member of the group of seven had ready

access to knives at his own home and had on the occasion of the offences reacted in

an extremely volatile and disproportionate manner. That person’s acts and inclinations

on other occasions was unknown.

30.     That is relevant to both the probative value of the evidence and the danger of unfair

prejudice to the accused. As submitted by counsel for the accused, in the

circumstances of this case, the evidence only had substantial probative value if

considered comparatively. In the absence of evidence in the Crown case exploring the

existence of any similar tendency in any of the other members of the group, the

accused would be left to the dangerous course of exploring that issue in cross-

examination of the other young persons or the informant, or else leaving potentially

selective evidence untouched, to his detriment.

31.     While I must proceed on the basis that the evidence is accepted, the determination of

its probative value relies on “the extent to which the evidence could rationally affect the

assessment of the probability of the existence of a fact in issue”: s 55(1) of the Evidence

Act; Hughes at [16].

32.     The Crown case hypothesis is that the other participants in the fight expected it to be a

“one on one” altercation not involving the use of knives and that it was only the accused

who brought a knife to the fight. However, to admit the evidence on that basis would

be to assume the correctness of the Crown case hypothesis. That is the very matter

the Crown must prove.

33.     Further, there is evidence to contradict the Crown hypothesis that only the accused

escalated the fight beyond what had been planned. It appears that a number of the

young men joined the brawl immediately upon their arrival at the skate park and

demonstrated aggressive tendencies.

34.     The evidence on the application included [REDACTED]. That person’s participation in

the fight included physically assaulting the deceased as well as swinging a pickaxe into

the victims’ car with such force as to puncture the bonnet multiple times. The intensity

of those violent responses clearly raises a question as to whether that person

possessed a tendency to react disproportionately to events which angered him by using

an offensive weapon to threaten, or inflict injury upon, others.

35.     Another witness was found to have numerous videos of fist fights stored on his phone

including some in which he was a participant. That material also raised a doubt as to

whether the accused was the only participant in the events to have the tendencies

alleged.

36.     The home of one of the other participants in the fight was found to hold a large number

of knives. Another had a folding knife and brass knuckles at his home and photographs

on his phone of a handgun and emails from suppliers about equipment such as brass

knuckles, SWAT vests and tasers. Another had used his phone to search the internet

for a switchblade and also had stored on it a photograph of a handgun. Finally, the

driver of one of the vehicles had a photograph on his phone of a large knife.

37.     That was just the evidence included in the Crown case. There was no way of knowing

what other evidence of such tendencies might exist.

38.     For those reasons, I was not satisfied that the evidence of the accused’s alleged

tendencies had significant probative value in singling him out as the person who

stabbed the victims.

Whether the probative value outweighs the danger of unfair prejudice

39.     In any event, the probative value of the evidence did not outweigh the danger of unfair

prejudice, for a number of reasons.

40.     First, in my view, the evidence was highly prejudicial in painting the accused as a violent

and volatile young man. Secondly, the incidents relied upon were many and would

have involved a number of witnesses, potentially distracting the jury from their primary

task. Thirdly, the accused faces outstanding charges in relation to the brick and rocky

road incidents. As submitted by counsel for the accused, the presentation of that

evidence would have involved “trials within a trial” and potentially have jeopardised the

accused’s defence of those other charges at a later stage. The existence of those

pending charges could also constrain or influence the way in which the accused could

respond to the tendency evidence in the trial.

41.     Finally and perhaps most significantly, as already noted, the implication of the evidence

being that he alone had the tendencies alleged, the accused would have faced the

difficult choice of going down a dangerous path in the cross-examination of others or

else leaving that prejudicial implication untouched.

42.     I assessed those considerations in the context of the seriousness of the offence and

the age of the accused when standing trial.

43.     For those reasons, I dismissed the applications.

I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: 30 May 2023