Cattle v The Queen
[2020] ACTCA 10
•19 February 2020
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Publication Restriction: | Not to be published until after trial |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
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.
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.
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.
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.
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.
Because of the rulings, the accused abandoned an application to sever the trials involving the two complainants.
The matter is listed for trial in the week commencing 10 March 2020.
The primary judge’s decision concerning s 66B
Section 66B of the Crimes Act provides:
66BCourse of conduct charge—child sexual offences
(1)More than 1 incident of the commission of the same child sexual offence may be included in a single charge if, and only if—
(a)each incident constitutes an offence against the same provision; and
(b)each incident relates to the same complainant; and
(c)the incidents take place on more than 1 occasion over a stated period; and
(d)the incidents, taken together, amount to a course of conduct having regard to—
(i) the time at which the incident happened; or
(ii) the place at which the incident happened; or
(iii) the purpose for which the incident was committed;
(iv) any other relevant matter.
…
(5)However—
(a)the charge need not include particulars of any specific incident of the offence, including the date, time, place, circumstances or occasion of the incident …
…
(6)The prosecution must prove beyond reasonable doubt that the incidents of an offence committed the accused, taken together, amount to a course of conduct having regard to—
(a)the time at which the incident happened; or
(b)the place at which the incident happened; or
(c)the purpose for which the incident was committed; or
(d)any other relevant matter.
(7)For subsection (6), it is not necessary to prove an incident with the same degree of specificity as to date, time, place, circumstance or occasion as would be required if the person were charged with the child sexual offence constituted only by that incident.
…
(12)In this section:
child sexual offence means—
(a)an offence against a child under this part; or
(b)an offence against a child under a sexual offence provision of this Act previously in force.
The Crown conceded that, absent s 66B, the common law requirements of particularity and the avoidance of duplicity would preclude the prosecution of Count 1: Cattle at [15].
The primary judge concluded that s 66B applies retrospectively, observing that:
(a)The provision was procedural; it did not create a new offence: at [9], [14] and [20].
(b)Nevertheless, as the provision fundamentally altered the rights of accused persons, it would operate retrospectively only if such an intention was clear: at [9]–[10].
(c)The definition of “child sexual offence” in s 66B(12)(b) was clearly intended to refer to offences that existed prior to the enactment of s 66B. That meaning was clear from the terms of the provision: at [19]. It was not necessary to refer to extrinsic material.
(d)In any event, relevant extrinsic material from the Royal Commission into Institutional Responses to Child Sexual Abuse and showing the legislature's response to the Commission's report put the meaning beyond doubt: at [21]–[25].
(e)The purpose of s 66B was to remove common law requirements preventing duplicity and an absence of specificity: at [14].
The accused contends that the primary judge's conclusion that s 66B is retrospective:
(a)failed to pay due regard to extrinsic material, particularly a statement by the Attorney-General that the provision did not operate retrospectively;
(b)was inadequate to displace the presumption against retrospectivity; and
(c)erroneously excluded the possibility of prospectively reading s 66B(12)(b).
Should leave be granted?
The Crown submitted that the primary judge's decision was not attended by sufficient doubt to warrant reconsideration by the Court of Appeal.
While the proposed appeal is not clearly meritorious, it may be arguable. If the appeal succeeded, it would mean that the appellant could not be convicted of Count 1. In addition, the proposed appeal raises a question of statutory construction, the answer to which has the capacity to affect many accused persons. It is a matter of substantial public importance to the administration of justice in the Territory.
The real issue on the application is whether the failure to grant leave to appeal may result in a substantial injustice to the accused.
The accused submitted that the appeal should proceed, the trial date of 10 March 2020 should be vacated, and the trial should not be re-listed until the appeal was determined. I interpolate that this would probably mean that the appeal would be heard in August 2020 and, at the earliest, the trial would proceed in November 2020.
Another approach would be for the appeal to proceed, and for the trial in relation to the CD counts to proceed as planned on 10 March 2020. At that trial, AB would give evidence of the events supporting Count 1, as well as evidence of the second tendency incident, as tendency evidence. The appeal would proceed in August 2020 as the May list is full. Any trial of Count 1 would, at the earliest, proceed in November 2020. At such a trial, the evidence of AB and CD, given at the trial concerning CD would be replayed; CD's evidence is to be admitted as tendency evidence in relation to the AB charges.
On the other hand, if the trial proceeds as planned on 10 March 2020, and if the accused is convicted of Count 1, on an appeal he may raise the same arguments that he now advances. If he succeeds on that appeal ground, there will be no new trial; he will be acquitted of Count 1.
Consequently, there is little utility in the appeal proceeding at this stage.
The accused submitted that there would be substantial injustice if the trial of Count 1 preceded the appeal because the jury would hear that the accused was charged with Count 1 and would be directed about the elements constituting Count 1, and the evidence relating to those elements. It was submitted that the fact that the jury would have before it a charge concerning conduct towards AB would give rise to prejudice additional to that associated with the evidence itself, which would go before the jury in any event as tendency evidence. Further, the jury directions would be complex because they would need to cover the elements of a variety of counts and explain tendency evidence. At the same time, the jury would need to consider whether Count 1 that was established beyond reasonable doubt.
I have concluded that there will be no real injustice to the accused—let alone substantial injustice—if Count 1 proceeds at the same time as the other counts and prior to any appeal. The jury will be directed appropriately. AB’s evidence will go before the jury in any event as tendency evidence, so there is no prejudice in relation to the jury hearing evidence that it would not otherwise hear. I do not consider that any real prejudice attaches to whether the evidence is adduced in support of a charge or merely as tendency evidence. Whether it is heard as a preliminary matter or after the trial, it is likely that the appeal will proceed in August 2020, and the issues raised by the accused will be determined no sooner if the appeal precedes the trial rather than following it.
On the other hand, from the perspective of the justice system, the community and the complainants, it is undesirable to delay the trial.
The application is refused.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |