R v CN (No 2) - [2019] ACTSC 171

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v CN (No 2)
Citation:	[2019] ACTSC 171
Hearing Date:	26 June 2019
Decision Date:	26 June 2019
Before:	Murrell CJ
Decision:	Various rulings made; see [15], [28] and [49].
Catchwords:	EVIDENCE – HEARSAY – When the maker was unavailable – Whether the intended asserted fact has probative value –
Whether the evidence is unfairly prejudicial
EVIDENCE – TAKING OF EVIDENCE – Application for
witnesses to give evidence by audiovisual link from a
participating State – Whether it is convenient for the witness –
Whether it causes unfairness to the accused
EVIDENCE – TENDENCY EVIDENCE – Cross-admissibility of evidence of each charged acts – Whether the evidence supports a general or a particular tendency – Application of The Queen v
Bauer [2018] HCA 40
EVIDENCE – TENDENCY EVIDENCE – Whether evidence of the accused’s browser history has significant probative value –
Whether the evidence supports the asserted tendency of having
a sexual interest in young females – Whether the evidence is
unfairly prejudicial
Legislation Cited:	Evidence Act 1977 (Qld) pt 3A Evidence Act 2011 (ACT) ss 65, 97, 101 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 16, 20, 43, 60, 63(4)
Cases Cited:	Brodie v Streeter [2003] ACTSC 88; 180 FLR 176 Hughes v The Queen [2017] HCA 20; 92 ALJR 344 R v CN [2019] ACTSC 50 R v DF [2010] ACTSC 31 The Queen v Bauer [2018] HCA 40; 92 ALJR 846
Parties:	The Queen (Crown)
C N (Defendant)
Representation:	Counsel
S Naidu (Crown)
S McLaughlin (Defendant)
Solicitors
ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant)
File Numbers:	SCC 211 of 2018; SCC 215 of 2018
Murrell CJ
Introduction

1.       The accused has pleaded not guilty to seven counts of sexual misconduct involving his step-granddaughter, X, a person under the age of 16 years. X was between nine and 11 years old at the time of the alleged offending.
2.       Count 1 alleges that the accused maintained a sexual relationship with X over the period 10 July 2016 to 26 January 2018, when she made visits to Canberra. Counts 2 to 7 are charged in the alternative. They relate to alleged sexual conduct on 5 January 2018 in a storeroom and an apartment located in an apartment block in Barton, Canberra. The accused managed the apartment block. The alleged conduct that is the subject of Counts 2 to 7 forms part of the conduct relied upon in support of Count 1.
3.       The apartment where the sexual misconduct allegedly occurred was usually occupied by PK, but on 5 January 2018 she was absent from the Territory and the accused had access to the apartment for the purpose of caretaking.
4.       The trial was listed to be heard on 4 March 2019.
5.       The pre-trial cross-examination of two child complaint witnesses was scheduled for 4 February 2019, but did not proceed because their mother decided that the experience would be too traumatic for them…

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 CN (No 2)

Details

AGLC: R v CN (No 2) [2019] ACTSC 171
Case: [2019] ACTSC 171
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the accused, CN, has pleaded not guilty to multiple counts of sexual misconduct involving his step-granddaughter, X, who was under the age of 16 during the alleged offences. The Crown seeks various directions and orders, including the admissibility of certain hearsay evidence, the giving of evidence by audiovisual link from Queensland, and the cross-admissibility of evidence of each charged act as tendency evidence.

The primary legal issues the court needed to decide were the admissibility of hearsay evidence under the Evidence Act, the convenience and fairness of taking evidence by audiovisual link from a participating state, and the probative value and prejudicial effect of the accused’s internet browsing history as tendency evidence. The court had to assess whether the hearsay evidence satisfied the conditions of s 65 of the Evidence Act, whether it was more convenient and not unfair to take evidence from Queensland under s 20 of the Miscellaneous Provisions Act, and whether the internet browsing history had significant probative value and whether its probative value substantially outweighed its prejudicial effect under ss 97 and 101 of the Evidence Act.

The court found that most of the hearsay evidence concerning PK, who passed away, was admissible, except for representations about the state of the premises and bed disturbance, which had little probative value and would be unfairly prejudicial. The court also found that it was more convenient for the complainant, her mother, and her aunt to give evidence by audiovisual link from Queensland, and that doing so would not be unfair to the accused. Regarding the internet browsing history, the court concluded that it did not support the asserted tendencies and would cause significant unfair prejudice to the accused, and therefore it was rejected as tendency evidence. The court admitted evidence supporting each of the charged acts as tendency evidence to prove that the accused had a sexual interest in the complainant and acted on it by engaging in sexual activity with her.

The final orders of the court were that the evidence of previous representations made by PK in a police interview would be admitted, the evidence of the complainant, her mother, and her aunt would be given by audiovisual link from Queensland, and evidence of each charged act would be admitted as tendency evidence, but evidence of the accused’s internet browser history would not be admitted.

Orders