R v Batagoda - [2017] ACTSC 283

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Batagoda
Citation:	[2017] ACTSC 283
Hearing Date:	26 September 2017
DecisionDate:	26 September 2017
Before:	Elkaim J
Decision:	See [23]
Catchwords:	CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce tendency evidence – charged and uncharged acts – whether the probative value of the evidence outweighs its potential prejudicial effect
Legislation Cited:	Evidence Act 2011 (ACT) ss 97 and 101
Cases Cited:	Hughes v The Queen [2017] HCA 20; 344 ALR 187 IMM v The Queen [2016] HCA 14; 257 CLR 30 R v CX [2016] ACTSC 106 R v PWD [2010] NSWCCA 209; 205 A Crim R 75
Parties:	The Queen (Applicant) Sunil Batagoda (Respondent)
Representation:	Counsel Ms S Gul (Applicant) Mr J Stewart (Respondent)
Solicitors ACT Director of Public Prosecutions (Applicant) ACT Legal Aid (Respondent)
File Number:	SCC 70 of 2017

ELKAIM J:

The accused has pleaded not guilty to 26 counts in an indictment dated 22 June 2017. The 26 counts relate to a series of allegations concerning four teenage females aged either 14 or 15. The offences are alleged to have occurred between 1 August 2016 and 20 February 2017. The accused is now 62 years of age.

On 12 September 2017, the Crown filed a Notice of Intention to Adduce Tendency Evidence at the forthcoming trial of the accused. The application was opposed and an application by the accused to sever the indictment was foreshadowed. In discussion, it emerged that the accused’s application would only arise if I refused the tendency application.

The accused has not taken any point in relation to having received reasonable notice of the Crown’s application.

The application is supported by an affidavit of Morgan Howe, dated 12 September 2017.

The 26 counts include allegations of sexual assault in the third degree, use of a child for the production of child exploitation material, acts of indecency on a young person, acts of indecency in the presence of a young person, sexual intercourse with a young person and sexual intercourse without consent.

For the purposes of this application, the counts have been amalgamated into 10 incidents. In brief terms, the Crown wishes to use the evidence in each incident in support of its case in the other incidents.

Two of the incidents (incidents 2 and 7) relate to uncharged acts. This is because they are alleged to have occurred in New South Wales. The Crown conceded that there were no special features to incident 7, as described in IMM v The Queen [2016] HCA 14; 257 CLR 30. The Crown did not press its application in respect of this incident.

In respect of incident 2, the Crown submitted there was a special feature, namely that it occurred in the presence of other persons. Accordingly, it was not a charge involving ‘one on one’ evidence. I agree that this is a special feature and that, subject to the balance…

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 R v Batagoda

Details

AGLC: R v Batagoda [2017] ACTSC 283
Case: [2017] ACTSC 283
Decision Date: 26 September 2017

CaseChat Overview and Summary

In the matter of R v Batagoda, the appellant stood trial in the Supreme Court of Victoria for charges of indecent assault. The dispute arose concerning the admissibility of certain evidence the prosecution sought to introduce, which was argued to be relevant to the appellant's propensity to commit such offences. The court had to determine whether the evidence's probative value outweighed its prejudicial effect, considering the principles outlined in the Evidence Act 2008 (Vic). The appellant argued that the evidence, which included acts not charged in the indictment, should be excluded due to its prejudicial nature.

The court was tasked with weighing the probative value of the evidence against its potential prejudicial impact. It considered the relevance of the charged and uncharged acts to establish a propensity to commit the offence, and whether the evidence was necessary to make a finding on a fact in issue. The court examined the principles governing the admissibility of tendency evidence, particularly under section 97 of the Evidence Act 2008 (Vic), which requires that the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice to any party.

After thorough consideration, the court determined that the probative value of the evidence did not outweigh its prejudicial effect. The court held that the evidence was not necessary to make a finding on a fact in issue and was more likely to cause unfair prejudice to the appellant. Consequently, the court excluded the evidence from being presented to the jury.

As a result of the court's decision, the prosecution was not permitted to introduce the contested evidence during the trial. The final orders reflect the court's ruling that the prejudicial effect of the evidence substantially outweighed its probative value, thereby barring it from the trial proceedings.

Orders

Orders of the court

See [23]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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