R v Djenadija (No 2) - [2015] ACTSC 59

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Djenadija (No 2)
Citation:	[2015] ACTSC 59
Hearing Date:	4 March 2015
DecisionDate:	6 March 2015
Before:	Burns J
Decision:	See [9], [13] – [15]
Category:	Interlocutory application
Catchwords:	CRIMINAL LAW AND PROCEDURE – Particular Offences – offences against the person – crimes and offences against children – act of indecency on a person under the age of 16. EVIDENCE – Tendency Evidence – whether the accused had a tendency to have a sexual attraction to young girls – whether the accused had a tendency to act on his sexual attraction to young girls – whether the accused had a tendency to rub his groin against young girls – whether the accused had a tendency to touch the sexual areas of young girls – whether the accused had a tendency to show young girls pornography – whether the accused had a tendency to groom young girls by talking about sexual activity or talking sexually to them – application to adduce tendency evidence allowed in part.
Legislation Cited:	Evidence Act 2011 (ACT) ss 97, 101, 135, 137
Parties:	The Queen (Crown) Lazo Djenadija (Accused)
Representation:	Counsel Ms J Campbell (Crown) Mr R Thomas (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds and Associates (Accused)
File Number:	SCC 121 of 2014

Burns J:

Background

By an application dated 25 September 2014, the Crown seeks orders that it be permitted to lead tendency evidence at the trial of the accused. That trial is listed to proceed next Tuesday, 10 March this year in this Court. The evidence the Crown seeks to lead is set out in a Notice to Adduce Tendency Evidence dated 25 September 2014 (the Notice), which has been appropriately served on the accused.

The indictment filed by the Crown alleges four offences of committing an act of indecency on a female under the age of 16. The complainant, with respect to three of those charges, is a person that I will refer to as JM and the complainant with respect to the remaining charge is her sister, who I will refer to as TR. The charges allege offences occurring between 1 January 1982 and 3 August 1985 when JM was between 8 and 12 years old and TR was between 10 or 11 years old. The Notice describes seven incidents which the Crown proposes to adduce as tendency evidence. Originally it described eight, but the Crown no longer intends to lead the evidence described in incident 4 in the Notice. Four of the incidents relate to the allegations which are the basis of the charges on the indictment. The remaining incidents describe uncharged acts said to have be committed by the accused.

The Notice particularises the tendencies the Crown seeks to prove as, first, a tendency to have a particular state of mind, being to have a sexual attraction to young girls; and secondly, a tendency to act in particular ways; namely, to act on his…

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.

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Details

Case: [2015] ACTSC 59
Decision Date: 6 March 2015

CaseChat Overview and Summary

The case of R v Djenadija (No 2) involved the respondent, Djenadija, who was charged with various offences against children, including indecent acts on a person under 16 years of age. The matter was heard in the Supreme Court of Victoria. The court was required to determine the admissibility of certain tendency evidence proposed by the prosecution, which related to the respondent's past actions and tendencies involving young girls. This included whether the respondent had a propensity to engage in specific acts such as rubbing his groin against young girls, touching their sexual areas, showing them pornography, and grooming them through sexually explicit conversations.

The legal issues central to this case involved the application of the common law rules regarding tendency evidence under section 97 of the Evidence Act 2008 (Vic). The court had to assess whether the proposed evidence was relevant and whether its probative value outweighed any prejudicial effect it might have. The respondent argued that the evidence was not relevant and would unfairly prejudice him. Conversely, the prosecution maintained that the evidence was crucial to establishing a pattern of behaviour that supported the charges against the respondent.

In its decision, the court found that some of the proposed tendency evidence was admissible as it was relevant to proving the charges against the respondent. The court held that the evidence concerning the respondent's tendency to act on his sexual attraction to young girls, rub his groin against them, touch their sexual areas, and show them pornography was relevant and its probative value outweighed any prejudicial effect. However, the court ruled that the evidence regarding the respondent's tendency to talk to young girls about sexual activity or talk sexually to them was not admissible as it did not sufficiently connect to the charges. The court concluded that while some evidence could be used, other parts were too prejudicial and not relevant enough to be admitted.

The final orders of the court allowed the prosecution to present certain tendency evidence in the trial. The court specified which parts of the evidence were admissible, ensuring a balance between the probative value and potential prejudice. The trial proceeded with these parameters in mind, allowing the jury to consider relevant evidence while mitigating the risk of unfair prejudice against the respondent.

Orders

Orders of the court

See [9], [13] – [15]

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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