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R v Tully (No 1)

R v Tully (No 1)

Case [2013] ACTSC 127 12 July 2013

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R v Cameron Flynn Tully (No 1)
[2013] ACTSC 127 (12 July 2013)
CRIMINAL LAW – EVIDENCE – Tendency Evidence – Crown application to adduce – eight separate complainants – whether any presence of possibility of concoction affects probative value of evidence – where no motive for concoction – whether probative value of tendency evidence of uncharged acts outweighed by prejudice to the accused – where very real danger that a jury may be mislead by number of incidents alleged – where accused ability to respond to uncharged acts compromised by lack of reasonable specificity – Application allowed in part
Evidence Act2011 (ACT), ss 55, 56, 97, 101
AE v R [2008] NSWCCA 52
BP v R; R v BP [2010] NSWCCA 303
Hoch v R (1988) 165 CLR 292
R v Boardman [1975] AC 421
R v Johnston (2012) 6 ACTLR 297
No. SCC 192 of 2012
Judge: Burns J
Supreme Court of the ACT
Date: 12 July 2013
IN THE SUPREME COURT OF THE     )
  )          No. SCC 192 of 2012
AUSTRALIAN CAPITAL TERRITORY           )
R
v

CAMERON FLYNN TULLY

ORDER
Judge:  Burns J
Date:  12 July 2013
Place:  Canberra
THE COURT ORDERS THAT:
1.          The prosecution will be permitted to lead tendency evidence consistent with these reasons at the trial of the accused.

2. These reasons are not to be published until further order of the court.

1. The accused CFT is charged with 23 offences, comprising 9 counts of sexual intercourse with young persons and 14 counts of committing acts of indecency on young persons. The offences are alleged to have occurred between May 1991 and October 2002. There are a total of 8 different complainants. The complainants were all girls, aged between 4 and 13 years, from various families that regularly visited the accused’s house.

2. On 21 December 2012, the prosecution served a tendency notice on the accused, notifying him of its intention to lead evidence of the accused’s conduct as tendency evidence at his trial. By an application dated 28 March 2013, the prosecution seeks an order that it be permitted to lead evidence outlined in the tendency notice to prove that the accused had a tendency to have a particular state of mind, or to act in particular ways, at the time of the alleged offences, being:

a)to have a sexual attraction to young girls;
b)to act on his sexual attraction to young girls; and
c)to take advantage of his parents’ friendships with other families to gain access to young girls.

3. The accused opposes the application. As I understand it, the parties agree that the only basis upon which a joint trial of all 23 offences can take place is if the prosecution’s application is successful, otherwise separate trials will be required with respect to the 8 different complainants.

RELEVANT LEGISLATION
4. The application is governed by the provisions of the Evidence Act2011 (ACT) (the EA 2011).

5. The touchstone of admissibility of evidence is relevance:

55 Relevant Evidence

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 Tully (No 1)

Details

AGLC: R v Tully (No 1) [2013] ACTSC 127
Case: [2013] ACTSC 127
Decision Date: 12 July 2013

CaseChat Overview and Summary

In the case of R v Tully (No 1), the accused, Tully, was facing charges that involved multiple complainants. The Crown sought to adduce evidence of eight separate incidents that occurred over a period of several years, all involving different complainants. The primary legal issue before the court was whether the probative value of this tendency evidence outweighed the risk of prejudice to the accused. Specifically, the court needed to determine if the possibility of concoction affected the evidence's probative value, considering there was no demonstrated motive for the accused to concoct these incidents. Furthermore, the court had to assess whether the potential for a jury to be misled by the sheer number of incidents, combined with the accused's limited ability to respond to these uncharged acts due to a lack of specificity, rendered the prejudice to the accused too great.

The court found that while there was a risk of prejudice due to the number of incidents and the lack of specificity, the probative value of the evidence was significant in establishing a pattern of behaviour. The absence of a motive for concoction, along with the distinctive nature of the acts, supported the admissibility of the evidence. The court concluded that the probative value of the tendency evidence was not substantially diminished by the potential for prejudice. Therefore, the Crown's application to adduce the evidence was allowed in part, permitting the introduction of some, but not all, of the incidents to the jury.

Orders