R v Yong Chuean Benedict Ang

[2013] ACTSC 59

R v YONG CHUEAN BENEDICT ANG

[2013] ACTSC 59 (8 March 2013)

CRIMINAL LAW – EVIDENCE – tendency evidence – application to adduce – s 97 Evidence Act 2011 (ACT) – acts do not establish a tendency – application refused

Evidence Act 2011 (ACT), s 97

EX TEMPORE JUDGMENT

No. SCC 178 of 2012

Judge:             Burns J
Supreme Court of the ACT

Date:              8 March 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 178 of 2012
AUSTRALIAN CAPITAL TERRITORY           ) 

R

v

YONG CHUEAN BENEDICT ANG

ORDER

Judge:  Burns J
Date:  8 March 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The Crown’s application to adduce tendency evidence is refused.

1. This is an application by the Crown to lead tendency evidence in the forthcoming trial of the accused, Yong Ang.  The Crown would propose calling evidence from a witness, G, which the Crown says would demonstrate a tendency on the part of the accused to have particular states of mind, and also to act in particular ways as set out in the notice to adduce tendency evidence.  In particular, the Crown seeks to prove that the accused had a tendency to have a particular state of mind, namely to be unperturbed by resistance to his sexual advances.

2. The Crown also seeks to prove that the accused had a tendency to act in particular ways, being:

   a)to enter the rooms of certain female ADFA cadets in the early hours of the morning;

   b)to give certain female ADFA cadets a back massage, when they were alone in their bed without invitation. 

   c)to try to kiss certain female cadets when they were alone in their bed. 

   d)to try to lift up the shirts of certain female ADFA cadets when they were alone in their bed. 

   e)to persist with sexual advances towards female cadets, despite resistance from them; and

   f)to ignore requests by female cadets for him to leave their rooms.

3. The Crown has very helpfully provided written submissions in which, under the heading with respect to each of the alleged tendencies, the Crown has summarised the evidence that it anticipates the complainant, K, and the proposed witness, G, would be able to give. I note that the present application is governed by s 97 of the Evidence Act 2011 (ACT), that provides under subs (1):

   Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless...

4. The section then outlines exceptions to the above rule. Firstly, the tendency rule applies unless “appropriate notice has been given”, which is the case here. Secondly and most importantly, at subs (1)(b), the tendency rules applies unless:

   The court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the parties seeking to present the evidence, have significant probative value.

5. The first question which needs to be asked is whether the evidence is capable of establishing a tendency.  In my opinion the evidence is not capable of establishing any of the tendencies that the Crown has set out in the notice to adduce tendency evidence.  I do not suggest that it is impossible to establish a tendency based upon evidence of two incidents alone.  But in my opinion, the present material that the Crown would seek to rely upon cannot establish a tendency. 

6. In any event, even if I am wrong in that regard I am firmly of the view that the evidence proposed to be led as tendency evidence would have not have significant probative value.

7. The actions alleged against the accused with respect to both of these incidents appear to be fairly generic and, indeed, there are a considerable number of differences between what the accused is alleged to have done, with respect to the complainant, K, and the proposed witness, G. In my view, the requirements of section 97 of the Evidence Act2011 have not been made out and accordingly the application will be refused.

   I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

   Associate:  

   Date:          4 April 2013

Counsel for the Applicant:  M Knowles
Solicitor for the Applicant:  ACT Director of Public Prosecutions
Counsel for the Respondent:  J Harris SC
Solicitor for the Respondent:  Malcolmson Lawyers
Date of Hearing:  8 March 2013
Date of Judgment:  8 March 2013