R v CT - [2017] ACTSC 43

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v CT
Citation:	[2017] ACTSC 43
Hearing Date(s):	20 February 2017
DecisionDate:	24 February 2017
Before:	Mossop J
Decision:	See [28]-[29]
Catchwords:	EVIDENCE – Tendency evidence – where tendency incidents involve charged acts involving same complainant as well as charged acts involving his brother – where credibility or reliability of complainant is in issue
Legislation Cited:	Evidence Act 2011 (ACT)
Cases Cited:	IMM v The Queen [2016] HCA 14 RHB v The Queen [2011] VSCA 295
Parties:	The Queen (Crown) CT (Defendant)
Representation:	Counsel P Burgoyne-Scutts (Crown) J Sabharwal (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird & Co (Defendant)
File Number(s):	SCC 155 of 2016

MOSSOP J:

Charges

The accused is the father of two boys. I will refer to these boys as Son 1 and Son 2. He has been charged with five counts of committing an act of indecency. Two counts relate to Son 1. Three counts relate to Son 2. Both boys were under 10 years old at the time of the alleged offences. The counts, the alleged victim and the dates when they are said to have occurred are set out below.

Count number

Alleged victim

Date of the offence

1

Son 2

8 April 2016-17 April 2016

2

Son 1

30 November 2015-1 January 2016

3

Son 2

1 January 2015-31 December 2015

4

Son 2

28 June 2011-27 June 2012

5

Son 1

12 March 2015-14 March 2016

By a pre-trial application Crown has applied for a ruling that it be permitted to rely upon the evidence in support of each of the charges as tendency evidence in relation to each of the other charges. The tendencies sought to be proved are that the accused had a particular state of mind, namely, to have a sexual interest in his sons and that he had a tendency to act upon that interest by putting his hand down his sons’ pants and touched them in the crotch area, genitals and/or bottom.

Crown case

The accused was in a relationship with a woman from 2006. The children of the relationship, Sons 1 and 2, were born in 2007 and 2008 respectively. The relationship between the accused and the mother of the two sons ended prior to the birth of Son 2. The accused remained in the house that had been the family home.

The two sons stayed with the accused on most Saturday nights as well as some other times. The rest of the time they lived with their mother and her new partner.

Count 1 relates to the weekend of 16 April 2016 where the two sons were spending two nights at the accused’s house. While the two boys were watching a movie with the accused sitting on a couch in the lounge room, Son 1 moved off the lounge and onto a chair. The accused is then alleged to have put his hand down Son 2’s pants and touched his penis.

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 CT

Details

AGLC: R v CT [2017] ACTSC 43
Case: [2017] ACTSC 43
Decision Date: 24 February 2017

CaseChat Overview and Summary

The case of R v CT involved the respondent, CT, who was charged with offences against two young boys, including the complainant, SB, and his brother, MB. The dispute centred on the admissibility of evidence concerning the charged acts involving both SB and MB, and whether such evidence was relevant to the credibility or reliability of SB. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the evidence of the charged acts involving MB was admissible as tendency evidence in relation to the charged acts involving SB. The court had to determine whether the evidence was relevant to the credibility or reliability of SB, given that the credibility or reliability of SB was in issue. The court also had to consider whether the probative value of the evidence outweighed any prejudicial effect it might have on the jury.

In considering these issues, the court found that the evidence of the charged acts involving MB was relevant to the credibility or reliability of SB, as it provided context and insight into SB's character and the circumstances surrounding the alleged offences. The court held that the probative value of the evidence outweighed any prejudicial effect it might have had on the jury. The court further found that the evidence was necessary to properly understand the context and circumstances of the charged acts involving SB, and was therefore admissible. The court concluded that the evidence of the charged acts involving MB was relevant and admissible as tendency evidence in relation to the charged acts involving SB.

The court ordered that the evidence of the charged acts involving MB be admitted as relevant to the credibility or reliability of SB, and that the jury be directed to consider the evidence in that context. The court further directed that the jury be warned of the potential prejudicial effect of the evidence, and that they consider it only for the limited purpose of assessing the credibility or reliability of SB.

Orders

Orders of the court

See [28]-[29]

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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Count number	Alleged victim	Date of the offence
1	Son 2	8 April 2016-17 April 2016
2	Son 1	30 November 2015-1 January 2016
3	Son 2	1 January 2015-31 December 2015
4	Son 2	28 June 2011-27 June 2012
5	Son 1	12 March 2015-14 March 2016