The Queen v Navin Edwin - [2013] ACTSC 6

THE QUEEN v NAVIN EDWIN
[2013] ACTSC 6 (4 February 2013)

CRIMINAL LAW – EVIDENCE – Tendency Evidence – Crown application to adduce – Evidence capable of establishing tendencies – Probative value of the tendency evidence substantially outweighs its prejudicial value – Trial will not be excessively complex despite multiple complainants and counts where tendencies limited – Counts that do not support the tendencies are severable – Application conditionally allowed

CRIMINAL LAW – EVIDENCE – Coincidence Evidence – Crown application to adduce –Probative value of evidence does not substantially outweigh prejudice – Value of evidence as coincidence evidence not as substantial as value as tendency evidence – Application refused

Evidence Act2011 (ACT)
Evidence Act1995 (NSW)

BP v R; R v BP [2010] NSWCCA 303
R v Johnston (2012) 6 ACTLR 297
R v Ford (2009) 201 A Crim R 451

No. SCC 60 of 2011
No. SCC 61 of 2011

Judge: Burns J
Supreme Court of the ACT

Date: 4 February 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 60 of 2011
  No. SCC 61 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN: THE QUEEN
Plaintiff

AND: NAVIN EDWIN
Defendant

ORDER

Judge:  Burns J
Date:  4 February 2013
Place:  Canberra

THE COURT ORDERS THAT:

Counts 16, 17, 18, 19 and 20 be severed from the indictment and proceed as a separate trial.

The Crown be allowed to lead evidence at the trial of the accused on the remaining counts that the accused has the following tendencies:

a)a tendency to have a particular state of mind, being a sexual interest in female children;
b)a tendency to act in a particular way, being to take sexualised images of females, including covert images.

The accused is awaiting trial on an indictment dated 19 July 2012 in the following terms:
THAT between the 7^th date of June 2009 and the 18^th day of February 2010 at Canberra in the Australian Capital Territory NAVIN EDWIN committed an act of indecency on a person under the age of 10 years, namely [Complainant 1].
SECOND COUNT                 AND FURTHER THAT on the 7^th day of November 2009 at Canberra aforesaid NAVIN EDWIN used a child, namely [Complainant 1] for the production of child pornography.
THIRD COUNT  AND FURTHER THAT on the 7^th day of November 2009 at Canberra aforesaid NAVIN EDWIN committed an act of indecency in the presence of a person under the age of 10 years, namely [Complainant 1].
FOURTH COUNT                 AND FURTHER THAT on the 13^th day of December 2009 at Canberra aforesaid NAVIN EDWIN used a child, namely [Complainant 1] for the production of child pornography.
FIFTH COUNT  AND FURTHER THAT on the 13^th day of December 2009 at Canberra aforesaid NAVIN EDWIN committed an act of indecency on a person under the age of 10 years, namely [Complainant 1].
SIXTH COUNT  AND FURTHER THAT on the 27^th day of December 2009 at Canberra aforesaid NAVIN EDWIN used a child, namely [Complainant 1]…

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 The Queen v Navin Edwin

Details

AGLC: The Queen v Navin Edwin [2013] ACTSC 6
Case: [2013] ACTSC 6
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the Crown brought charges against Navin Edwin for various offences involving children and the production of child pornography. The Crown sought to introduce both tendency and coincidence evidence to support their case. The court had to decide whether the proposed evidence met the admissibility criteria set out in the Evidence Act 2011 (ACT). Specifically, the court had to consider whether the probative value of the tendency evidence substantially outweighed its prejudicial value and whether the probative value of the coincidence evidence substantially outweighed its prejudicial effect.

The court found that the Crown's proposed tendency evidence could establish that the accused had a tendency to have a sexual interest in female children and a tendency to take sexualised images of females, including covert images. The court allowed this evidence to be introduced at trial, subject to certain limitations to avoid excessive complexity. The court also found that the probative value of the coincidence evidence did not substantially outweigh its prejudicial effect, and therefore, the application to introduce this evidence was refused.

The court ordered that Counts 16 to 20 be severed from the indictment and proceed as a separate trial, while the remaining counts would proceed as a joint trial. The Crown was allowed to lead evidence of the accused's tendencies, subject to the limitations set out in the judgment.

Orders