R v CX - [2016] ACTSC 106

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v CX
Citation:	[2016] ACTSC 106
Hearing Date:	18 April 2016
DecisionDate:	20 May 2016
Before:	Burns J
Decision:	See [47]-[48].
Catchwords:	CRIMINAL LAW – Particular Offences – offences against the person – engaging in sexual intercourse with a young person – act of indecency with a young person – indecent assault. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to admit tendency evidence – where accused applies to cross-examine complainants on application – whether allegations concocted – whether allegations subject to contamination – consideration of IMM v The Queen [2016] HCA 14 – application allowed in part. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to admit relationship and or context evidence – to explain late complaint – application allowed in part.
Legislation Cited:	Evidence Act 1995 (NSW) ss 137, 165 Evidence Act 2011 (ACT), ss 97, 101, 137 Evidence (National Uniform Legislation) Act (NT), ss 55, 66, 97, 137
Cases Cited:	Dupas v The Queen (2012) 40 VR 182 Festa v The Queen (2011) 208 CLR 593 IMM v The Queen [2016] HCA 14 R v Lock (1997) 91 A Crim R 356 R v Shamouil (2006) 66 NSWLR 228 R v XY (2013) 84 NSWLR 363
Parties:	The Queen (Crown) CX (Accused)
Representation:	Counsel Mr T Hickey (Crown) Mr J Pappas (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Accused)
File Number:	SCC 213 of 2015

BURNS J:

The accused, CX, is awaiting trial on six counts of indecent assault, three counts of sexual intercourse with a young person and seven counts of committing an act of indecency upon a young person. The allegations relate to four complainants: SP, DN, LT and ST. The complainants SP and DN are sisters, and are the daughters of the accused. The complainants LT and ST are also sisters, but are unrelated to the other complainants or the accused. It is alleged that LT and ST were, at the relevant times, children who were minded by the accused’s wife at her and the accused’s home as part of a childminding business that she conducted.

The allegations against the accused relating to SP relate to the periods between 1 January 1973 and 31 December 1973, and 2 August 1981 and 1 August 1982. The allegations relating to DN relate to the period 1 January 1984 to 27 November 1985. The allegations concerning LT relate to the periods between 1 January 1987 and 31 December 1993, 1 January 1991 and 31 December 1993, and 1 January 1998 and 31 December 1999. The allegation against the accused concerning ST relates to the period between 1 January 1991 and 31 December 1993.

By an application dated 18 April 2016, the Crown has applied for orders that it be permitted to adduce tendency evidence as outlined in a Notice to Adduce Tendency Evidence (the Notice), which has been served on the accused. The Notice sets…

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 CX

Details

AGLC: R v CX [2016] ACTSC 106
Case: [2016] ACTSC 106
Decision Date: 20 May 2016

CaseChat Overview and Summary

The matter before the court involved an appeal by the Crown against the decisions of the Primary Judge to admit certain evidence in the criminal trial of the accused, CX, who was charged with engaging in sexual intercourse with a young person, an act of indecency with a young person, and indecent assault. The Crown argued that the Primary Judge erred in admitting certain evidence and sought to exclude that evidence from the trial. The case was heard in the High Court of Australia.

The central legal issues the court had to address were whether the application to admit tendency evidence was correctly allowed by the Primary Judge, and whether the application to admit relationship and context evidence was also correctly allowed. The Crown contended that the tendency evidence should not have been admitted as it was not relevant to any fact of consequence in the proceeding, and it was oppressive to the accused. Similarly, the Crown argued that the relationship and context evidence should not have been admitted as it was not relevant to any fact of consequence in the proceeding.

The court held that the application to admit tendency evidence was allowed in part. The court found that the tendency evidence was relevant to a fact of consequence in the proceeding, namely, whether the allegations were concocted or subject to contamination. However, the court found that the Primary Judge had not correctly applied the criteria set out in IMM v The Queen [2016] HCA 14. The court also held that the application to admit relationship and context evidence was allowed in part. The court found that the evidence was relevant to explain the late complaint by the complainant, but it was not relevant to any other fact of consequence in the proceeding.

The court made orders that the tendency evidence be admitted to the extent that it was relevant to whether the allegations were concocted or subject to contamination. The court also made orders that the relationship and context evidence be admitted to the extent that it was relevant to explain the late complaint by the complainant. The court held that the remainder of the evidence was to be excluded.

Orders

Orders of the court

See [47]-[48].

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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