R v Sean (a pseudonym) (No 2)

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.