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…

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 Sean (a pseudonym) (No 2)

Details

AGLC: R v Sean (a pseudonym) (No 2) [2023] ACTSC 132
Case: [2023] ACTSC 132
Decision Date

CaseChat Overview and Summary

In the matter of R v Sean (a pseudonym) (No 2), the Supreme Court of the Australian Capital Territory considered the Crown's application to introduce tendency evidence in a criminal trial against a young person, Wren Sean, who was charged with murder by stabbing and inflicting grievous bodily harm. The central issue in the trial was identifying the stabber among a group of seven young men involved in the attack on four young men, one of whom died from his injuries. The Crown sought to present evidence suggesting a tendency to act disproportionately by using an offensive weapon, or threatening to use an offensive weapon, to inflict serious injury, as well as a tendency to have an interest in the unlawful possession of knives.

The court found that the evidence failed to meet the tests required by the Evidence Act 2011 (ACT). Firstly, the court had reservations about the probative value of evidence of an apparent tendency in a person as young as the accused, considering the dynamic and often volatile nature of adolescent behaviour. Secondly, some of the tendency evidence concerned events that occurred after the alleged commission of the offences, during a period when the accused was under strict bail conditions and facing unresolved criminal charges, which could have distorted his behaviour. Thirdly, the evidence could not have significant probative value unless presented together with evidence excluding like tendencies in each other member of the group. Even if the evidence had significant probative value, the court concluded that its probative value did not outweigh the danger of unfair prejudice to the accused.

The court dismissed the Crown's applications to rely on tendency evidence, reserving its reasons for the ruling. The central issues in the trial would remain the identification of the stabber and the circumstances surrounding the stabbing incident. The accused's age and stage of cognitive and emotional development played a crucial role in the court's decision, as well as the potential for unfair prejudice and the lack of comparative evidence concerning the tendencies of the other participants in the fight.

Orders