R v BF

[2016] ACTSC 244

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v BF

Citation:

[2016] ACTSC 244

Hearing Date:

24 August 2016

DecisionDate:

25 August 2016

ReasonsDate:

25 August 2016

Before:

Murrell CJ

Decision:

Incidents 1 and 2 may be led as evidence of a tendency to have a sexual interest in B.  Otherwise, Incidents 1–9 are not to be led as tendency evidence.

Catchwords:

CRIMINAL LAW – EVIDENCE – Tendency evidence – sexual offences – child complainants – whether incidents demonstrate tendency – whether tendency evidence may be led

Legislation Cited:

Evidence Act 2011 (ACT) ss 97, 101

Cases Cited:

IMM v The Queen (2016) 90 ALJR 529

R v Kisun [2016] ACTSC 212

Texts Cited:

Goodman-Delahunty, Jane, Annie Cossins and Natalie Martschuk, Jury reasoning in joint and separate trials of institutional child sexual abuse: An empirical study (Royal Commission into Institutional Responses to Child Sexual Abuse, 2016)

Parties:

The Queen (Crown)

BF (Accused)

Representation:

Counsel

Ms S McMurray (Crown)

Mr P Smith (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Accused)

File Number:

SCC 180 of 2014

MURRELL CJ:

The tendency application

1. The accused is charged with one count of committing an act of indecency on A, being a person under 16 years old (Count 1), four counts of committing an act of indecency on B, being a person under 10 years old (Counts 2–5), and two counts of having sexual intercourse with B, being a person under 10 years old (Counts 6 and 7).

1. Pursuant to s 97(1) of the Evidence Act 2011 (ACT) (Evidence Act), the prosecution seeks to tender the evidence on all counts and evidence of two other incidents as tendency evidence on each count.

1. The accused objects to the proposed tendency evidence.

The prosecution case

1. A and B are brothers.  During 2010 and 2011, they lived with their mother and step-father.  A was 11–12 years old and B was 6–7 years old.

1. The accused lived next door with his mother and younger siblings.  The accused was aged 16–18 years.  The accused has an intellectual disability.

1. In 2010–2011, A and B played with the accused at their home and the home of the accused; their step-father often took the accused on family outings.

1. The prosecution case is that A allowed the accused to use A’s Play Station Portable (PSP) to watch movies.  The accused downloaded pornography onto the PSP and showed the pornography to A.  The accused showed B the pornography on the PSP and also showed him pornography on the accused’s mobile telephone.  The accused touched B in sexual ways and had oral sex with B.

1. The defence case is that the conduct did not occur.  In addition, the defence raises mental impairment.

The tendencies

1. The prosecution asserts that the accused had behavioural tendencies to:

(a)expose A and B to pornography in order to evoke B’s sexual interest;

(b)kiss and bite B and touch B’s penis;

(c)pull B’s pants down and put B’s penis in his mouth;…