R v TK - [2015] ACTSC 11

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v TK
Citation:	[2015] ACTSC 11
Hearing Date:	27 October 2014
DecisionDate:	9 February 2015
Before:	Burns J
Decision:	The Crown will be permitted to lead tendency evidence of incidents 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12 and 13 as tendency evidence to establish that the accused had a tendency to be sexually attracted to the complainant.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Particular Offences – offences against the person – crimes and offences against children – act of indecency on a person under the age of 10 years – act of indecency on a person under the age of 16 years EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – whether the Crown is entitled to lead evidence that the accused had a tendency to have a particular state of mind – whether the Crown is entitled to lead evidence that the accused had a tendency to act in particular ways
Legislation Cited:	Evidence Act 2011 (ACT) ss 56, 97, 101 Evidence Act 1995 (Cth)
Cases Cited:	R v Ford (2001) A Crim R 451 R v Johnston [2012] ACTSC 89
Parties:	The Queen (Crown) TK (Defendant)
Representation:	Counsel Mr Thomas (Crown) Mr Whybrow (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Defendant)
File Number:	SCC 51 of 2014

Burns J:

The accused is charged with eight counts of committing an act of indecency on ST. Five of those offences are alleged to have occurred between 1 January 1993 and 31 January 1996, one between December 1993 and January 1996, one between 1 September 1996 and 22 August 1997, and one between 1 November 2001 and 22 August 2002. To each of these charges he has pleaded not guilty and his trial is due to take place in March this year.

The Crown has given notice that it proposes leading tendency evidence at the accused’s trial to establish that, at the relevant times, the accused had a tendency to have a particular state of mind, being:

1. to have a sexual attraction to [ST].
2.to seek sexual gratification without regard for the presence of family and family friends.

The Crown also proposes leading this evidence to establish that the accused had a tendency to act in particular ways, namely:

1(a) to engage in sexual activity with [ST]
1(b) to touch the genitals, breasts or bottom of [ST].

The Crown proposes leading evidence relevant to each charge as tendency evidence with respect to each of the other charges. In addition, it proposes leading evidence of five “uncharged acts” as tendency evidence with respect to all charges. In the alternative, if the Crown is not permitted to lead the proposed evidence as tendency evidence, it proposes leading it as relationship evidence.

The accused was the step-father of the complainant at the time of these alleged events. The complainant was born in 1986, meaning that she was between…

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 TK

Details

AGLC: R v TK [2015] ACTSC 11
Case: [2015] ACTSC 11
Decision Date: 9 February 2015

CaseChat Overview and Summary

The matter of R v TK involved the accused, TK, facing charges of indecent acts against a person under the age of 10 years. The case was heard in a court of law, where the accused contested the charges, and the prosecution sought to introduce certain evidence to establish a pattern of behaviour. The court had to determine the admissibility of this evidence and its relevance to the charges.

The court needed to decide whether the Crown was entitled to lead evidence that TK had a tendency to have a particular state of mind and a tendency to act in specific ways. This involved evaluating the relevance and probative value of the evidence against the potential prejudice it might cause. The court examined whether the evidence of past incidents could establish a pattern or propensity that was pertinent to the current charges.

In its decision, the court allowed the Crown to present evidence of incidents 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, and 13 as tendency evidence to demonstrate that TK had a tendency to be sexually attracted to the complainant. The court found that this evidence was relevant and had sufficient probative value to outweigh any prejudicial effect it might have on the trial. The court's reasoning was based on the importance of establishing a pattern of behaviour to support the charges against TK.

The final orders of the court permitted the Crown to introduce the specified incidents as tendency evidence in the trial, allowing the jury to consider the pattern of behaviour in determining the accused's guilt. This decision aimed to ensure that the trial was conducted fairly, with all relevant evidence considered to reach a just outcome.

Orders

Orders of the court

The Crown will be permitted to lead tendency evidence of incidents 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12 and 13 as tendency evidence to establish that the accused had a tendency to be sexually attracted to the complainant.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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