Cattle v The Queen

[2020] ACTCA 10

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Cattle v The Queen

Citation:

[2020] ACTCA 10

Hearing Date:

19 February 2020

DecisionDate:

19 February 2020

Before:

Murrell CJ

Decision:

Application refused.

Catchwords:

APPEAL – CRIMINAL LAW – Application for leave to appeal an interlocutory decision – Whether primary judge erred in concluding that provision has retrospective operation – Whether accused would suffer substantial injustice – Historical child sexual offences – Course of conduct charge

Legislation Cited:

Crimes Act 1900 (ACT) ss 66B, 76

Cases Cited:

R v Cattle [2020] ACTSC 8

Parties:

John Walter Cattle (Applicant)

The Queen (Respondent)

Representation:

Counsel

C Smith SC with S Howell (Applicant)

K Lee (Respondent)

Solicitors

McKenna Taylor (Applicant)

ACT Director of Public Prosecutions (Respondent)

File Number(s):

ACTCA 6 of 2020

Publication Restriction:

Not to be published until after trial

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Elkaim J

Date of Decision:          31 January 2020

Case Title:  R v Cattle

Citation: [2020] ACTSC 8

MURELL CJ

Background

1. The accused seeks leave to appeal from the decision of Elkaim J (the primary judge) refusing to stay Count 1, which is one of four charges alleging sexual impropriety by the accused: R v Cattle [2020] ACTSC 8 (Cattle). The accused contends that the primary judge erred in concluding that s 66B of the Crimes Act 1900 (ACT) (Crimes Act) operates retrospectively.

1. Count 1 concerns complainant AB.  It is alleged that the relevant events occurred in 1983 or 1984.  The remaining three charges allege indecent assault or act of indecency against a second complainant, CD.

1. Count 1 alleges that the accused indecently assaulted AB contrary to s 76 of the Crimes Act and s 66B of the Crimes Act. Section 66B commenced on 5 December 2018. After other charges had been laid, on 29 August 2019, the prosecution laid the Count 1 charge under s 76 of the Crimes Act, relying on s 66B.

1. The primary judge also allowed the Crown's application to adduce tendency evidence, inter alia ruling that the evidence of AB was admissible as tendency evidence supporting the charges concerning CD and vice versa. The relevant tendency evidence from AB was:

(a)the facts supporting Count 1: AB said that, in 1983 or 1984, there was a course of conduct that occurred on several occasions and involved the accused holding AB, tongue‑kissing her and causing her to touch his penis.

(b)an incident in 1983 or 1984 when, according to AB, the accused told her to look at a magazine containing pornographic material and then discussed it with her.

1. The primary judge ruled that the evidence of these events was relevant to alleged tendencies on the part of the accused to have a sexual interest in girls aged between 10 and 13 years of age, to act on that interest by engaging such girls in sexualised activities, and to use his position as tennis coach to do so.

1. Because of the rulings, the accused…