R v BI

Case [2016] ACTSC 287 18 August 2016

Type to search within this case.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v BI
Citation:	[2016] ACTSC 287
Hearing Date:	29 July 2016
DecisionDate:	18 August 2016
ReasonsDate:	29 September 2016
Before:	Burns J
Decision:	See [37]-[39]
Catchwords:	CRIMINAL LAW – Particular offences – offences against the person – sexual offences – act of indecency on a person under the age of 16 years – indecency in the presence of a young person – attempted incest – incest – attempted sexual intercourse with a young person. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – charged and uncharged acts – tendency to have a particular state of mind – to be attracted to children – tendency to act in a particular way – obtain sexual gratification from children – permitted to lead tendency evidence of charged acts. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to sever the indictment – where complainants are known to each other – where significant length of time between alleged acts – whether insufficient similarities in conduct – application refused.
Legislation Cited:	Evidence Act 2011 (ACT), ss 55, 56, 97, 101 Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 51
Cases Cited:	BP v R; R v BP [2010] NSWCCA 303 Hughes v The Queen [2016] HCATrans 201 R v Ford [2009] NSWCCA 306; 201 A Crim R 451 R v Smith [2008] NSWCCA 247; 190 A Crim R 8 R v Tully (No. 1) [2013] ACTSC 127 R v Vojneski [2014] ACTSC 66 R v Watkins [2005] NSWCCA 164; 153 A Crim R 434 Tully v The Queen [2016] ACTCA 4 Velkoski v The Queen [2014] VSCA 121; 45 VR 680
Parties:	The Queen (Crown) BI (Accused)
Representation:	Counsel Mr S McLaughlin (Crown) Mr M Kukulies-Smith (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused)
File Numbers:	SCC 64 of 2016; SCC 159 of 2016

BURNS J:

The accused, BI, is awaiting trial on the following charges:

(a)six counts of committing an act of indecency upon, or in the presence of TM, being a person under the age of 16 years, between 30 September 1995 and 1 June 1996;
(b)two counts of engaging in sexual intercourse with TM, being a person under the age of 16 years;
(c)two counts of attempting to engage in sexual intercourse with TM being a person under the age of 16 years, between 30 September 1995 and 1 June 1996;
(d)four counts of committing an act of indecency on OI, being a person under the age of 16 years, between 23 January 2009 and 3 July 2009;
(e)three counts of attempting to engage in sexual intercourse with a person under the age of 16 years, namely OI, who was to his knowledge his lineal descendent, between 23 January 2009 and 3 July 2009;
(f)one count of engaging in sexual intercourse with a person under the age of 16 years, namely OI, who was to his…

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 BI

Details

AGLC: R v BI [2016] ACTSC 287
Case: [2016] ACTSC 287
Decision Date: 18 August 2016

CaseChat Overview and Summary

The case of R v BI involved the appellant facing charges related to sexual offences against a person under the age of 16 years. The appellant was charged with multiple offences, including an act of indecency, indecency in the presence of a young person, attempted incest, incest, and attempted sexual intercourse with a young person. The matter was heard in the court of appeal, where the appellant contested the admissibility of certain evidence and the joinder of the charges.

The central legal issues before the court were the admissibility of tendency evidence of the charged acts and the appropriateness of joining the charges in the indictment. The appellant argued that the evidence of the charged acts was not relevant and should be excluded as it could unfairly prejudice the jury against him. Additionally, the appellant sought to sever the charges on the basis that the acts were not sufficiently similar and that there was a significant length of time between the alleged offences. The prosecution maintained that the evidence was relevant and necessary to prove the appellant's state of mind and propensity towards the charged offences.

The court found that the evidence of the charged acts was admissible as it was relevant to establishing the appellant's tendency to be attracted to children and to act in a particular way that obtained sexual gratification from them. The court rejected the appellant's argument that the evidence should be excluded on the basis of unfair prejudice, finding that the probative value of the evidence outweighed any prejudicial effect. Regarding the joinder of the charges, the court held that there were sufficient similarities in the conduct, despite the length of time between the alleged acts, and that the charges could properly be joined in the indictment.

The court's decision upheld the admissibility of the tendency evidence and the joinder of the charges. Consequently, the appeal was dismissed, and the orders of the trial judge were affirmed. The court did not make any further orders regarding the sentencing or any other aspect of the case.

Orders

Orders of the court

See [37]-[39]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v BI [2016] ACTSC 287

Most Recent Citation

Director of Public Prosecutions v Murphy [2023] ACTSC 4

Cases Citing This Decision

Director of Public Prosecutions v Murphy [2023] ACTSC 4
Citation 1

…; 44 VR 652 Hoyle v The Queen [2018] ACTCA 42; 339 FCR 11 Hughes v The Queen [2017] HCA 20; 263 CLR 338 Pfennig v The Queen (1995) 182 CLR 461 R v BI [2016] ACTSC 287 R v Chase [2018] NSWCCA 71 R v CX [2016] ACTSC 106 R v GAC [2007] NSWCCA 315; 178 A Crim R 408 R v Harker [2004] NSWCCA 427 R v Joiner [2002] NSWCCA…
BI v The Queen (No 2) [2018] ACTCA 11
Citation 2

…37; 196 CLR 297 Patel v The Queen [2012] HCA 29; 247 CLR 531 Poniris v R [2014] NSWCCA 100 R v Bauer (a Pseudonym) (No 2) [2017] HCATrans 269 R v BI [2016] ACTSC 287 R v Ford [2009] NSWCCA 306; 273 ALR 286 R v Johnston [2012] ACTSC 89; 6 ACTLR 297 R v Smith [2008] NSWCCA 247; 190 A Crim R 8 R v Tully (No 1) [2013]…

See all citing cases →

Cases Cited

R v Zhang [2017] SASCFC 5
Citation 1

…t on the probability of a fact in issue. For example, evidence is prejudicial if it is inflammatory or it encourages unconscious prejudice: R v Zhang (2005) 227 ALR 311. Tendency evidence is inherently prejudicial. In Pfennig , Mason CJ, Deane and Dawson JJ accepted that it is natural for a jury to think that, if an…
Tully v The Queen [2016] ACTCA 4
Citation 2 (Para 1)

…On appeal ( Tully v The Queen [2016] ACTCA 4 ( Tully v The Queen )), Murrell CJ and North J said at [45]:…
Velkoski v The Queen [2014] VSCA 121
Citation 3 (Para 1)

…een events and circumstances remains critical to the assessment of probative value, citing BP v R ; R v BP [2010] NSWCCA 303 and Velkoski v The Queen [2014] VSCA 121; 45 VR 680.…
R v Vojneski [2014] ACTSC 66
Citation 4 (Para 1)

…pportunity and motive, have significant probative value in establishing that it was the accused who murdered the victim by stabbing: see R v Vojneski [2014] ACTSC 66 ( R v Vojneski ). In forensic signature cases the process of reasoning which the jury is asked to adopt is that the similarities between events is so…
R v Tully (No 1) [2013] ACTSC 127
Citation 5 (Para 1)

…The Crown relied on observations which I made in R v Tully (No. 1) [2013] ACTSC 127 at [43], where I said:…
Patel v The Queen [2012] HCA 29
Citation 6

…e, significance or volume of the prejudicial evidence is such that the prejudice is incapable of cure, even by careful direction: Patel v The Queen (2012) 247 CLR 531.…
BP v R; R v BP [2010] NSWCCA 303
Citation 7 (Para 1)

…ted that consideration of similarities between events and circumstances remains critical to the assessment of probative value, citing BP v R ; R v BP [2010] NSWCCA 303 and Velkoski v The Queen [2014] VSCA 121; 45 VR 680.…
R v Ford [2009] NSWCCA 306
Citation 8 (Para 1)

…same, but said that the evidence must show a tendency to act in a particular way, not a tendency to commit acts of a closely similar nature: R v Ford [2009] NSWCCA 306; 201 A Crim R 451; R v Smith [2008] NSWCCA 247; 190 A Crim R 8.…
R v Smith [2008] NSWCCA 247
Citation 9 (Para 1)

…ndency to act in a particular way, not a tendency to commit acts of a closely similar nature: R v Ford [2009] NSWCCA 306; 201 A Crim R 451; R v Smith [2008] NSWCCA 247; 190 A Crim R 8.…
HML v The Queen [2008] HCA 16
Citation 10 (Para 28)

…involving prejudicial evidence, the prejudice can be addressed by limiting the extent of the evidence or by appropriate directions: HML v The Queen (2008) 235 CLR 334 at [28]. Where tendency evidence has been admitted, it is usual for the trial judge to caution the jury about the improper use of tendency evidence. Of…
R v GAC [2007] NSWCCA 315
Citation 11

…t, if the respondent molested [two other persons], he did the same to the complainant, and the emotion not rationality would govern’: R v GAC [2007] NSWCCA 315; (2007) 178 A Crim R 408.…
R v Watkins [2005] NSWCCA 164
Citation 12 (Para 1)

…The accused referred me to the decision of the New South Wales Court of Criminal Appeal in R v Watkins [2005] NSWCCA 164; 153 A Crim R 434 ( R v Watkins ). The appellant, Watkins, was convicted at trial of 30 counts of fraud between July 1999 and April 2002. At his trial the Crown was permitted to lead on tendency a…
Pfennig v the Queen [1995] HCA 7
Citation 13

…bative value of evidence goes to proof of an issue, whereas the prejudicial effect of evidence goes to the fairness of the trial: Pfennig v The Queen (1995) 182 CLR 461 ( Pfennig ) per McHugh J at 528. Evidence is prejudicial if there is a risk that the jury may misuse it, i.e. use it other than by way of considering…
Hamilton v Whitehead [1988] HCA 65
Citation 14

…at “sexual cases ... are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard.” De Jesus v The Queen [1988] HCA 65; (1986) 61 ALJR 1, 3 (Gibbs CJ): R v Fitzpatrick (2012] (sic) ACTSC 102 [21] (Burns J). This concern is heightened in cases in which sexual acts against…
De Jesus v The Queen [1986] HCA 65
Citation 15

…s ... are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard.” De Jesus v The Queen [1988] HCA 65; (1986) 61 ALJR 1, 3 (Gibbs CJ): R v Fitzpatrick (2012] (sic) ACTSC 102 [21] (Burns J). This concern is heightened in cases in which sexual acts against children are alleg…

Legislation Cited

Evidence Act 2011 (ACT) 101, 55, 56, 97
5 mentions (from Para 1)
Evidence (Miscellaneous Provisions) Act 1991 (ACT) 51
2 mentions (from Para 1)