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…
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- AGLC
- R v Sean (a pseudonym) (No 2) [2023] ACTSC 132
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- [2023] ACTSC 132
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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