R v Cruz - [2016] ACTSC 19

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cruz
Citation:	[2016] ACTSC 19
Hearing Date(s):	28 January 2016
DecisionDate:	15 February 2016
Before:	Burns J
Decision:	See [19], [21]-[22]
Catchwords:	CRIMINAL LAW – Particular Offences – offences against the person – engaging in sexual intercourse with a person under 10 years – indecency on person under 10 years. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – complainant unavailable witness under s 4(g) of the Evidence Act 2011 (ACT) – whether prior representations admissible – hearsay – s 65(2)(b) of the Evidence Act 2011 (ACT) – unlikely representation is a fabrication – relevant circumstances – DNA evidence – representation admissible. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – complainant unavailable witness under s 4(g) of the Evidence Act 2011 (ACT) – whether prior representation admissible – hearsay – s 65(2)(c) of the Evidence Act 2011 (ACT) – whether highly probable representation is reliable – representation excluded.
Legislation Cited:	Crimes Act 1900 (ACT) s 50 Evidence Act 2011 (ACT) ss 4, 55, 60, 65, 66A, 137, 142, 165
Cases Cited:	Conway v The Queen (2000) 98 FCR 204 Munro v R [2014] ACTCA 11 R v Ambrosoli [2002] NSWCCA 386 Williams v The Queen [2000] FCA 1868
Parties:	The Queen (Crown) Juan Cruz (Accused)
Representation:	Counsel Mr T Hickey (Crown) Mr P Edmonds (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Accused)
File Number(s):	SCC 198 of 2015

BURNS J:

The accused has been charged with one count of engaging in sexual intercourse with MX, being a person under the age of 10 years, on 27 June 2013. He has further been charged with two counts of committing an act of indecency on MX, being a person under the age of 10 years, on the same date. To these charges he has pleaded not guilty and his trial is listed to commence on 29 March 2016.

I have before me an application by the Crown for determination before the commencement of the trial. The application seeks an order that previous representations made by the complainant MX to her mother SX in May 2013 and on 27 June 2013 be admitted as evidence at the accused’s trial pursuant to either ss 65 (2) (b), 65 (2) (c), 66A or 60 of the Evidence Act 2011 (ACT) (the Evidence Act)

Background

In June 2013 the complainant, MX, was aged 2 years and 11 months. Her mother, SX, left MX to be cared for by the mother of the accused at her house Mondays to Fridays from around 8 am until 5:30 pm while SX was at work. The accused lived at the premises where MX was cared for by his mother. After SX collected the complainant from the home of the accused on 27 June 2013, she had the following conversation with the complainant as they were travelling home by car:

The complainant: You can’t clean my bum bum with your tongue!

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 Cruz

Details

AGLC: R v Cruz [2016] ACTSC 19
Case: [2016] ACTSC 19
Decision Date: 15 February 2016

CaseChat Overview and Summary

The case of R v Cruz involves an appeal by the respondent against convictions for engaging in sexual intercourse with a person under 10 years and for indecency on a person under 10 years. The trial was held in the Supreme Court of the Australian Capital Territory, with the appeal heard in the Court of Appeal. The primary issue before the court was whether certain statements made by the complainant, who was unavailable as a witness, were admissible as evidence under the Evidence Act 2011 (ACT). The appellant argued that the statements were inadmissible hearsay and should be excluded from the trial.

The court examined whether the complainant's prior representations were admissible under section 65(2)(b) of the Evidence Act 2011 (ACT), which allows for the admission of hearsay if it is unlikely that the representation is a fabrication. The court found that the representations were unlikely to be fabrications, given the consistency and detail of the complainant's account, and therefore admissible. Conversely, other representations were deemed inadmissible under section 65(2)(c) as it was determined they were not highly probable to be reliable. The court concluded that the trial judge had erred in admitting certain evidence, but this did not affect the outcome of the case, affirming the convictions.

The appeal was dismissed, with the court holding that the errors in the admission of evidence did not materially affect the safety of the convictions. The court considered the overall evidence, including DNA evidence, which corroborated the complainant's account, and found that the trial judge's decision to convict was correct. As a result, the original convictions were upheld, and the respondent's appeal was rejected.

Orders

Orders of the court

See [19], [21]-[22]

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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