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 |
Cases Cited: | BJS v The Queen (2013) 231 A Crim R 537 Dupas v The Queen (2012) 218 A Crim R 507 |
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
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.
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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CaseChat Overview and Summary
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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