R v BC

[2019] ACTSC 391

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v BC

Citation:

[2019] ACTSC 391

Hearing Date:

13 December 2019

DecisionDate:

13 December 2019

Before:

Elkaim J

Decision:

See [10]

Catchwords:

CRIMINAL LAW – EVIDENCE – Pre-Trial Application – Application to adduce tendency evidence – uncharged acts – temporal issue – probative value – prejudice to accused

Legislation Cited:

Evidence Act 2011 (ACT) ss 97 and 101

Cases Cited:

McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045
R v Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846
R v EUC [2019] ACTSC 185

Parties:

The Queen (Crown)

BC (Accused)

Representation:

Counsel

S Janackovic (Crown)

J O’Keefe (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

John O’Keefe (Accused)

File Numbers:

SCC 192 of 2019; SCC 193 of 2019; SCC 194 of 2019

ELKAIM J:

1. This is an application to adduce tendency evidence dated 8 November 2019 and supported by an affidavit of Ms Elizabeth Wren affirmed the same date.

1. The application is opposed. The affidavit sets out the details of nine incidents which the Crown seeks to use to establish the tendency of the accused. The specific tendencies alleged are that the accused has a sexual interest in his cousin, LC, and that he has a tendency to act on that sexual interest.

1. Mr O'Keefe, who appears for the accused, has provided me with written submissions in which he sets out the basis for his opposition. I think I can separate the opposition into two areas. The first has two parts. Firstly, that the incidents include uncharged acts and secondly, that the incidents include acts against the complainant when she was 8 being used to support acts against her when she was 15 and vice versa. 

1. Dealing first with the uncharged acts. There was a time when uncharged acts were unfavourably looked upon as supporting tendency applications. That time has passed and it is clear that recent High Court authority is to the contrary.

1. The second part relates to the temporal separation between ages 8 and 15. Mr O'Keefe has submitted that to allow the tendency as between acts where there is that sort of temporal gap would be contrary to the decision of the High Court in McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045.

1. The Crown has referred me to a decision of Burns J in this Court in the matter of R v EUC [2019] ACTSC 185. As Mr O'Keefe pointed out, if it is between the authority of the High Court and Burns J, the High Court wins. However it is clear that Burns J has himself relied on High Court authority, namely the matter of R v Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846.

1. It also seems to me that the judgement of his Honour, in particular at [22] and [23], show that there is no reason why the period of time should be significant to the application. I would note that I am influenced by the fact that the complainant is the same person. Had the alleged tendency been to have a sexual interest in young girls, and there were two or more different girls involved at either end of the seven-year period, then I think I would probably have favoured the accused's argument. However, as it is the same girl, I think the application is appropriate.

1. That brings me to the last matter raised by the accused. That concerns what is called the conception incident. The accused has already pleaded guilty to this incident having occurred.

1. Going back to the basics of a tendency application, the relevant sections in the Evidence Act 2011 (ACT) are ss 97 and 101. What concerns me here is that the prejudicial effect of this evidence significantly outweighs its probative value. I agree it has a good deal of probative value, but I also bear in mind that a jury would be asked to satisfy itself that the conception incident had occurred in order to use it in respect of the counts. It follows that the accused would be prevented from denying his involvement in the conception incident, and that would very significantly impair his capacity to conduct the rest of his defence. I also note that, even absent the conception incident, there is significant evidence against the accused.

1. I make Order 1 in the application filed on 14 November 2019 with the exception that I do not give leave to include Incident 8 as tendency evidence.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 28 May 2020