R v Aguer

[2023] ACTSC 48

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Aguer

Citation:

[2023] ACTSC 48

Hearing Date(s):

15 March 2023

DecisionDate:

15 March 2023

Before:

Norrish AJ

Decision:

See [28]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – Tendency and Coincidence evidence – application to adduce coincidence evidence granted – application to adduce tendency evidence to be considered by the trial judge

Legislation Cited:

Evidence Act 2011 (ACT) ss 97, 98, 101

Criminal Code 1995 (Cth) s 135.1(3)

Cases Cited:

Fischetti v The Queen [2019] ACTCA 2

Giourtalis v The Queen [2013] NSWCCA 216

R v Nassif [2004] NSWCCA 443

Parties:

The King ( Crown)

Ruben Majok Aleer Aguer ( Accused)

Representation:

Counsel

M Keks ( Crown)

J Moffett ( Accused)

Solicitors

Commonwealth Director of Public Prosecutions ( Crown)

Fraser Criminal Law ( Accused)

File Number(s):

SCC 96 of 2022

NORRISH AJ:

1. In this matter, an application is made by the prosecution that it be permitted to adduce evidence of the conduct of the accused to prove both that he had a tendency to act in a particular way and to have a particular state of mind (s 97 of the Evidence Act 2011 (ACT) (the Act)) and/or that two or more events happened to prove that the accused had a particular state of mind (s 98 of the Evidence Act 2011 (ACT)), the latter evidence being shortly described as “coincidence evidence.”

1. The Crown proposes to arraign the accused in respect of 31 counts contrary to s 135.1(3) of the Criminal Code 1995 (Cth). Shortly put, it is alleged by the prosecution that between 26 May 2014 and 12 October 2015, the accused, in respect of 31 different groups of transactions, falsely represented that he had provided services, with the intention on his part of dishonestly causing loss to the Commonwealth.

1. The amended Crown case statement sets out an outline of the allegations against the accused, who, at relevant times, was an approved “provider” responsible for “managerial and administration services” pursuant to what is described as the “Family Assistance Law.” This legislative structure allows for “family day care” where an educator “looks after children in their own home,” working in conjunction with the relevant “provider” or relevant “providers.”

1. It is alleged, in relation to each count, that the accused made claims in his capacity as the sole operator and one of the two general managers of a corporation called “Long Life Family Day Care Pty Ltd” (“Long Life”) for the payment of services that were not rendered by particular educators. The monies received were dispersed either to the corporation, to the accused himself, or to particular educators. Each count relates to claims in respect of sessions of care for particular children purportedly cared for by specific educators, with 18 counts relating to one particular educator, who, as I understand it, was the partner of the accused, and the remaining 13 counts relating to other educators.

1. The Crown alleges that for the purposes…