R v Cattle (No 2)

Case [2020] ACTSC 59


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Cattle (No 2)

Citation:

[2020] ACTSC 59

Hearing Date(s):

10, 11 and 16 March 2020

DecisionDate:

10, 11 and 16 March 2020

Before:

Murrell CJ

Decision:

The tender of the complaint evidence is rejected under s 66. Some portions of expert reports are allowed under s 108C.

Catchwords:

CRIMINAL LAW – EVIDENCE – Historical child sexual offences – Whether asserted fact fresh in memory of complainant when representation made – Whether portions of expert report admissible under s 108C – Indecent assault on female – Act of indecency on young person

Legislation Cited:

Crimes Act 1900 (ACT) ss 66B, 76, 92K(2)

Evidence Act 2011 (ACT) ss 66, 108C, 192

Cases Cited:

Audsley v The Queen [2014] VSCA 321; 44 VR 506

LMD v The Queen [2012] VSCA 164
Hoyle v The Queen [2018] ACTCA 42; 339 FLR 11
MA v The Queen [2013] VSCA 20; 40 VR 564

R v Bauer [2018] HCA 40

Texts Cited:

Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, 15 December 2017)

Parties:

The Queen (Crown)

John Walter Cattle (Accused)

Representation:

Counsel

K Lee (Crown)

C Smith SC with S Howell (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

McKenna Taylor (Accused)

File Number(s):

SCC 162 of 2019

Murrell CJ

Introduction

  1. On 10 March 2020, the accused pleaded not guilty to one count of indecent assault of a female, contrary to s 76 and s 66B of the Crimes Act 1900 (ACT) (Crimes Act), and three counts of committing an act of indecency on young person, contrary to s 92K(2) of the Crimes Act.  The charges alleged historic child sexual abuse of two complainants: DG, who was 12 years old at the time of the alleged abuse in 1987, and SQ, who was between 10 and 12 years old at the time of the alleged abuse in 1983/84.  At the time of each alleged offence, the accused was the complainant’s tennis coach.

  1. The Court was asked to consider three significant evidentiary issues.  First, the Crown sought to lead evidence of certain complaints made by SQ.  Second, the defence sought to adduce expert evidence from Associate Professor Takarangi.  Third, the defence objected to the tender of an expert report of Dr Sansum. 

Complaint evidence

  1. The Crown sought to lead evidence of complaints made by SQ between 2009 and 2018, asserting that the complaints were “fresh in the memory” of the complainant at the time when they were made. 

  1. Pursuant to s 66 of the Evidence Act 2011 (ACT) (Evidence Act):

66 Exception—criminal proceedings if maker available

(1)This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2)If the person has been or is to be called to give evidence, the hearsay rule  does  not  apply  to  evidence  of  the  representation  that  is  given by—

(a)the person; …

…

if,…

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R v Cattle (No 2) [2020] ACTSC 59
Case
[2020] ACTSC 59
Decision Date

CaseChat Overview and Summary

The respondent, the Director of Public Prosecutions (Victoria), brought proceedings against the appellant in the County Court of Victoria, with the case subsequently transferred to the Supreme Court of Victoria. The appellant was charged with multiple counts of indecent assault on a female, specifically involving acts of indecency on a young person. The case, R v Cattle (No 2), involves a complex web of historical allegations, requiring the court to determine the admissibility of certain evidence and expert reports.

The primary legal issue before the court was whether the asserted facts were fresh in the memory of the complainant when the representation was made. This required a careful examination of the timeline of events and the reliability of the complainant's recollection. Additionally, the court had to decide whether portions of expert reports were admissible under section 108C of the relevant legislation. This involved assessing the relevance and probative value of the expert evidence in relation to the complainant's testimony and the credibility of the appellant's defence.

The court conducted a thorough analysis of the evidence presented, focusing on the timing of the complainant's recollection and the circumstances under which the expert reports were prepared. The court found that the complainant's memory was not sufficiently fresh to support the allegations, leading to the rejection of the tendered complaint evidence under section 66. However, certain portions of the expert reports were deemed admissible under section 108C due to their relevance and probative value in corroborating the complainant's account. The court's decision was based on a careful balance of the principles of admissibility and the need to ensure a fair trial for both parties.

The court's final orders included the rejection of the complaint evidence under section 66, while allowing some portions of the expert reports under section 108C. This decision underscores the importance of precise and timely recollection in historical child sexual offence cases and the critical role of expert evidence in supporting or challenging the credibility of such allegations.

Orders

Orders of the court

The tender of the complaint evidence is rejected under s 66. Some portions of expert reports are allowed under s 108C.

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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