R v SQ (No 2)

[2021] ACTSC 65

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v SQ (No 2)
Citation:	[2021] ACTSC 65
Hearing Date:	16 April 2021
Decision Date:	16 April 2021
Before:	Elkaim J
Decision:	See [19]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-Trial Application – Tendency evidence – relationship evidence – agreement between the parties
Legislation Cited:	Evidence Act 2011 (ACT)
Parties:	The Queen (Crown) SQ (Offender)
Representation:	Counsel
R Christensen (Crown) S Whybrow (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown) Aulich Criminal Law (Offender)
File Numbers:	SCC 217 of 2020
ELKAIM J:

1.       The respondent is due to face a jury trial in the week commencing 28 June 2021. On 25 March 2021 the Crown filed an application and a notice to adduce tendency evidence.

2.       The application is supported by the affidavits of Mr Kade Alexander, affirmed on 24 March 2021, and Ms Tahlia Drumgold, affirmed on 14 April 2021.

3.       The respondent is facing four counts, contained in an indictment filed on 29 October 2020. Count 1 is sexual intercourse without consent. Counts 2 and 3, which are alternatives to Count 1, allege an act of indecency without consent. Count 4 also alleges an act of indecency without consent.

4.       An amended application was filed on 14 April 2021. Primarily the Crown wishes to adduce tendency evidence. Alternatively it wishes to adduce relationship or context evidence. A further amendment of the tendency notice was made today to reflect the current position of the Crown.

5.       The relevant sections of the Evidence Act 2011 which are applicable to a tendency application are ss 97 and 101. Under s 97 the Crown must establish that it has given reasonable notice of the application to the accused person and that the evidence has significant probative value.

6.       The tendencies that the Crown wished to establish were:

(a)	That the accused has a tendency to be physically violent towards his wife (the complainant).
(b)	That the accused has a tendency to be emotionally violent towards his wife.
(c)	That the accused has a tendency to use physical and emotional violence to intimidate, humiliate and control his wife.

7.       The Crown has highlighted the recent amendments to the Evidence Act derived from the report of the Royal Commission into Institutional Responses to Child Sexual Abuse. The amendments to s 97A are not relevant here. They relate to proceedings involving sexual offences against children.

8.       The amendments to s 101 are relevant. Section 101(2) now states:

Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.

9.       Plainly the removal of the requirement that the probative value of the evidence must

“substantially” outweigh the danger of unfair prejudice reduces the threshold facing the

Crown.

10.    Initially the respondent, in written submissions, resisted the application, including asserting that reasonable notice had not been given. Having regard to the time the original application was filed I am satisfied that appropriate notice was given.

11.     In any event the parties have since reached agreement on the disposition of the application. To this end they requested me to make, by consent, the orders that I will make below.

12.    The orders relate to both the tendency application and the relationship/context application.

13.     The tendency the Crown will be permitted to attempt to establish, as now agreed between the parties, and which is the subject of the orders is as follows:

To engage physically with the complainant in a sexual or indecent manner after they had separated and without her consent, in order to intimidate, humiliate and/or control the complainant.

14.     Notwithstanding the agreement of the parties s 97(1)(b) requires the court to think that the evidence will have significant probative value. In addition, as seen above, s 101(2) requires an assessment of whether the probative value of the evidence substantially outweighs any prejudicial effect it may have.

15.    Accordingly, I have examined the material put before me and in particular the

“incidents” listed in the notice to adduce tendency evidence filed on 14 April 2021. I

have also looked at the material contained in the affidavits mentioned above.

16. I am satisfied that the requirements of the above sections of the Evidence Act have been met and provide a proper foundation for the above orders relating to tendency evidence.

17.     In respect of the relationship or context evidence, I am satisfied, derived from the applicable rules under the Common Law, that the allegations contained in the evidence to be adduced are designed to place the relationship between the accused and the complainant in its proper context.

18.     The Consent Orders, in particular Orders 5, 6 and 7, are made at the behest of the accused. They do not require approval from the Court.

19.     I make the following orders

(a)	Leave to the Crown to rely on an amended Notice of Intention to Adduce Tendency Evidence.
(b)	Orders 1 – 7 as stated in the document entitled Consent Order dated 16

April 2021. A copy of this document is annexed to these reasons.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 29 July 2021