R v Djenadija

Case [2015] ACTSC 29


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Djenadija

Citation:

[2015] ACTSC 29

Hearing Date:

21 October 2014

DecisionDate:

26 February 2015

Before:

Burns J

Decision:

See [28] – [30]

Category:

Interlocutory application

Catchwords:

CRIMINAL LAW – Particular Offences – offences against children – indecent assault on a person under the age of 16 years

EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – whether the Evidence Act 2011 (ACT) applies to an application to lead tendency evidence in relation to offences allegedly committed prior to the commencement of that Act

Legislation Cited:

Crimes Act 1900 (ACT) s 76

Evidence Act 2011 (ACT) ss 97, 101, 137
Evidence Act 1995 (Cth)
Human Rights Act2004 (ACT) s 25 (1)
Legislation Act 2001 (ACT) ss 75B, 84

Cases Cited:

BJS v The Queen (2013) 231 A Crim R 537

Dupas v The Queen (2012) 218  A Crim R 507
Hoch v R [1988] HCA 50; (1988) 165 CLR 292
Maxwell v Murphy (1957) 96 CLR 261
R v Cook [2004] NSWCCA 52
R v Shamouil (2006) 66 NSWLR 228
R v XY (2013) 84 NSWLR 363
Rodway v R [1990] HCA 19; (1990) 169 CLR 515

Parties:

The Queen (Crown)

Lazo Djenadija (Defendant)

Representation:

Counsel

Mr T Hickey (Crown)

Mr R Thomas (Defendant)

Solicitors

ACT Director of Public Prosecutions (Crown)

Paul Edmonds & Associates (Defendant)

File Number:

SCC 121 of 2014

Burns J:

Background

  1. The accused is awaiting trial on four charges of indecently assaulting a person under the age of 16 years contrary to the provisions of s 76 of the Crimes Act1900 (ACT), as that provision stood between 1 January 1982 and 18 June 1984 when the offences are alleged to have occurred (CC14/135; CC14/134; XO14/30129; CC14/137). At some time after 18 June 1984, the offence created by s 76 was abolished and a differently formulated offence was substituted. Three of the charges allege offences against a complainant JM, and the remaining charge alleges an offence against a different complainant, TR. The two complainants are sisters, with JM being aged between 8 and 11 years at the time of the alleged offences, and TR being aged between 10 and 11 years. All charges are contained within the one indictment dated 1 August 2014. The accused is scheduled to be tried on 10 March 2015.

  1. On 25 September 2014, the accused was served with a Notice of Intention to Adduce Tendency Evidence in which the Crown gives notice of an intention to lead evidence of eight incidents with a view to establishing that the accused, at the relevant times, had a tendency to be sexually attracted to young girls and had a tendency to act in particular sexual ways. Three of these incidents correlate with the four charges on the indictment, but the remaining five incidents pertain to acts alleged to have been committed by the accused but which do not form the basis of any charge. By an…

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R v Djenadija [2015] ACTSC 29
Case
[2015] ACTSC 29
Decision Date

CaseChat Overview and Summary

The appellant, Djenadija, appealed against his conviction for indecent assault on a person under the age of 16 years. The trial judge had admitted evidence of prior acts of indecency in a similar manner, which the appellant argued was an error in law due to the application of the Evidence Act 2011 (ACT). The trial judge had concluded that the Act did not apply to the prior act evidence, which was alleged to have occurred before the Act's commencement. The appeal centred on whether the Evidence Act applied to the admission of tendency evidence of prior acts committed before its commencement.

The court was required to determine whether the Evidence Act 2011 (ACT) applied to the admissibility of tendency evidence of prior acts committed before the Act's commencement. This involved interpreting the provisions of the Evidence Act and considering whether the legislative intent was to provide a new regime for all tendency evidence, including evidence of prior acts committed before the Act's commencement. The court needed to examine the transitional provisions of the Act and the common law principles that governed the admissibility of such evidence prior to the Act's enactment.

The court held that the Evidence Act 2011 (ACT) did not apply to the admissibility of tendency evidence of prior acts committed before its commencement. The court found that the transitional provisions of the Act were intended to provide a new regime for evidence of prior acts committed after the Act's commencement, but did not extend to acts committed before its commencement. The court relied on the common law principles that governed the admissibility of such evidence prior to the Act's enactment, which allowed for the admission of such evidence if it had probative value and its prejudicial effect was not outweighed by that value. The court concluded that the trial judge had not erred in admitting the evidence of the prior acts of indecency, as it was relevant to the appellant's propensity to commit such acts and was not excluded by any other provisions of the Evidence Act.

The court dismissed the appeal and upheld the conviction. The court made orders to that effect and confirmed the appellant's conviction for the indecent assault on a person under the age of 16 years. The court also noted that the trial judge had properly considered the principles of the Evidence Act and the common law in admitting the prior act evidence, and that the appellant's argument that the Evidence Act applied to the prior act evidence was without merit.

Orders

Orders of the court

See [28] – [30]

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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