R v Cattle (No 2)

[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,…