R v BI (No 3) - [2016] ACTSC 356

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v BI (No 3)
Citation:	[2016] ACTSC 356
Hearing Date:	1 December 2016
DecisionDate: Reasons Date:	1 December 2016 12 December 2016
Before:	Refshauge J
Decision:	The objection to the cross-examination of TM about his conviction for the offence of obtaining money by deception is overruled.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial by jury – historical sexual offences – multiple offences – multiple complainants – multiple charges – act of indecency against a person aged 16 years or below – sexual intercourse with a person aged 16 years or below – incest EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Witnesses – admissibility of evidence – credibility evidence – advance ruling and findings – cross-examination by defence as to credibility of the witness – witness previously convicted for the offence of obtaining money by deception – could substantially affect the assessment of the witness’s credibility – degree of dishonesty a relevant factor for consideration – proposed cross-examination not inconsistent with the intention of s 103 – substantial probative value –objection to the cross-examination of the dishonesty conviction over-ruled – s 103 of the Evidence Act 2011 (ACT) EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – Privilege in relation to self-incrimination – s 128 certificate issued by the Court – s 128 of the Evidence Act 2011 (ACT)
Legislation Cited:	Evidence Act 1995 (Cth), s 103 Evidence Act 2011 (ACT), ss 97, 101, 102, 103, 103(1), 103(2), 128, 135, 137, 192A
Cases Cited:	Bugg v Day (1949) 79 CLR 442 Director of Public Prosecutions v Kocoglu [2012] VSC 185 El-Azzi v Nationwide News Pty Ltd [2004] NSWSC 1056 Montgomery v The Queen [2013] NSWCCA 73 R v Burns (2003) 137 A Crim R 557 R v El-Azzi [2004] NSWCCA 455 R v RPS (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Hunt CJ at CL and Hidden J, 13 August 1997). R v Rogerson (No 28) [2016] NSWSC 160 R v Tieu [2016] NSWCCA 111 Toki (No 3) [2000] NSWSC 999; 116 A Crim R 536
Texts Cited:	Australian Law Reform Commission, Report on Evidence (Report No 26, 1985) S Odgers SC, Uniform Evidence Law (Thompson Reuters, 12^thed, 2016)
Parties:	The Queen (Crown) BI (Defendant)
Representation:	Counsel Mr A Williamson and Mr S McLaughlin (Crown) Mr M Kukulies-Smith (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Defendant)
File Number:	SCC 64 of 2016

REFSHAUGE J:

This trial concerns allegations of sexual offences by four complainants, all of whom were under the age of 16 years at the time. The offences were said to have been committed by the accused BI against them between 1995 and 2012. To each of the 21 counts on the indictment, BI has pleaded not guilty.

One of the complainants, TM, was, at the time, the much younger brother of BI’s then wife, who was living with BI and his wife…

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 (No 3)

Details

AGLC: R v BI (No 3) [2016] ACTSC 356
Case: [2016] ACTSC 356
Decision Date: 12 December 2016

CaseChat Overview and Summary

This case involved an appeal against conviction and sentence by the respondent, BI, in the ACT Supreme Court. BI was convicted of a series of sexual offences against children, including acts of indecency and sexual intercourse with a person aged 16 years or below, as well as incest. The primary legal issues before the court centred on the admissibility of evidence regarding the credibility of a key witness, TM, who had previously been convicted of obtaining money by deception. The court had to determine whether this prior conviction was admissible to challenge the witness's credibility, considering the provisions of section 103 of the Evidence Act 2011 (ACT). The court also considered whether a section 128 certificate should be issued to the witness to protect them from self-incrimination.

The court found that the prior conviction of the witness was relevant to assessing their credibility. It held that a conviction for an offence involving serious dishonesty could substantially affect the assessment of a witness's credibility. The court reasoned that the nature of the offence, which involved a sustained period of dishonest conduct, demonstrated a pattern of behaviour that was pertinent to the witness's truthfulness. The court rejected the Crown's argument that the evidence was irrelevant, stating that the prior conviction was necessary to challenge the witness's credibility effectively. The court also ruled that the objection to cross-examining the witness about their prior conviction was overruled, finding that the evidence had substantial probative value and did not violate the intention of section 103 of the Evidence Act.

The court further determined that a section 128 certificate should be issued to the witness to protect them from self-incrimination. This decision was based on the witness's potential vulnerability and the need to ensure their cooperation without fear of being charged with an offence based on their testimony. The court's ruling allowed the evidence of the witness's prior conviction to be used in the trial, enabling the defence to challenge the witness's credibility effectively. The final orders of the court were that the objection to the cross-examination of TM about their conviction for obtaining money by deception was overruled, and a section 128 certificate was issued to the witness.

Orders

Orders of the court

The objection to the cross-examination of TM about his conviction for the offence of obtaining money by deception is overruled.

Background

Background to the litigation

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Evidence

Evidence Before The Court

As originally enacted, the test of the Evidence Act 1995 (Cth) (the Commonwealth Evidence Act) which, until 2011 applied in this Territory, was that the evidence had to have substantial probative value. That phrase, however, had to be somewhat nuanced in relation to this issue. As Hunt CJ at CL said in R v RPS: As explained by Simpson J in R v El-Azzi [2004] NSWCCA 455 at [183]: In 2008, s 103 of the Commonwealth Evidence Act was amended, when the phrase “has substantial probative value” was omitted and “could substantially affect the assessment of the witness’s credibility” was substituted as it now appears. When the Evidence Act was made, it was in accordance with the uniform legislation as it then appeared, for example in the amended s 103 of the Commonwealth Evidence Act. I note that this amendment broadly adopted the description used by Simpson J in R v El-Azzi. In R v El-Azzi, Sperling J recognised (at [251]), that a conviction for an offence of serious dishonesty did address a witness’s credit and did in that case satisfy the requirements of substantial probative value. The offence in that case was one of corruptly taking a sum of money for helping named persons recover stolen property and not using due diligence to cause those who stole the property to be brought to trial. In that case, the appellant was charged with a number of drug offences involving the manufacturing of methylamphetamine. They were, thus, not directly related to the matters the subject of the prior conviction, which was only relevant to dishonesty more generally. This is to be contrasted with other offences, such as prior drug offences, which would not tend to prove untruthfulness, as opposed, perhaps, to the commission of similar offences. See Director of Public Prosecutions v Kocoglu [2012] VSC 185 at [35]. The conclusion in R v El-Azzi that prior convictions for offences of dishonesty are capable of substantially affecting the assessment of the credibility of a witness was confirmed in R v Tieu [2016] NSWCCA 111 at [129]. I must also have regard to the factors set out in s 103(2) of the Evidence Act. In particular, the passage of time may be relevant as was found in R v Rogerson (No 28) [2016] NSWSC 160 at [32], where the passage of approximately 22 years was held to be too significant a period since the prior offence and conviction to permit it to constitute substantial probative value. In this case, the offence was one of dishonesty and committed over a closed but sustained period of time. It was not one isolated incident, but a series of dishonest acts. They showed a sense of entitlement exhibited by TM, without any real basis which would have permitted TM to justify his actions. The Crown first submitted that the evidence was not relevant. It was submitted that the conduct which might constitute blackmail was not contested; the Crown had led it and BI was not challenging it. Thus, the evidence of the earlier conviction was not required to prove that the conduct constituting the blackmail was more likely to have occurred than not.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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