R v Djenadija (No 2)
[2015] ACTSC 59
•6 March 2015
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 sexual attraction to young girls, to rub his groin against young girls, to touch the sexual areas of young girls, and in particular breasts and genitalia, to show young girls pornography, and to groom young girls by talking about sexual activity or talking sexually to them.
Relevant law
The reception of tendency evidence at the accused’s trial is governed by ss 97 and 101 of the Evidence Act 2011 (ACT) (the Evidence Act). Section 97 provides that such evidence is not to be received unless the party seeking to adduce it has given reasonable notice in writing to each of the parties of the intention to adduce the evidence and the court thinks that the evidence will, by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
Section 101 provides a further requirement, namely that in criminal proceedings, tendency evidence cannot be adduced by the prosecution unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. The term probative value is defined in the dictionary to the Evidence Act as meaning the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. As I understand it, no admissions have been made by the accused, meaning that among the facts in issue; that is, facts which must be proved by the Crown, are the fact that the incidents the subject of the charges occurred and the fact that they were relevantly indecent.
If the jury were satisfied that the accused had a tendency to be sexually attracted to female children at the time of these alleged events, that could rationally affect their assessment of the probability that these events occurred. Similarly, such a finding could also rationally affect the assessment of the probability that those alleged events were indecent, in the sense that they were done for the purpose of sexual gratification.
Evidence on the voir dire
Evidence was taken from the complainants on the voir dire concerning the possibility that the complainants, as sisters, may have concocted their evidence or that it may have been the subject of contamination. This was for the purpose of assessing the probative value of the proposed tendency evidence.
The relationship between the complainants raises the theoretical possibility of concoction and also the possibility of contamination, but after hearing the evidence I am satisfied that it does nothing more. The evidence adduced from the complainants on the voir dire does not suggest that the probative value of the evidence they may give at the accused’s trial is lessened by reason of concoction or contamination. That does not mean, of course, that the accused cannot raise those issues for the jury to consider.
Consideration
Counsel for the accused raised the objection that the tendencies alleged by the Crown, being tendencies directed towards young girls, is too vague. I agree. In my opinion, if the Crown is to be permitted to lead tendency evidence at the accused’s trial, it must be required to amend its application to allege a more particular tendency or tendencies, such as a tendency to be sexually attracted to female children. Today, the Crown seeks leave to amend the Notice such that the tendencies directed towards young girls are amended to be tendencies directed towards female children. The accused does not object to that amendment. I grant leave for the Crown to amend the Notice in that way.
I am satisfied that the evidence described in incidents 1, 2 and 5 in the Notice have significant probative value and that the probative value substantially outweighs any prejudicial effect the evidence may have on the accused. In forming this view, I have taken into account the fact that the jury will be directed about the way in which the evidence may be used.
I now turn to the incidents alleging uncharged acts. Incident 3 alleges an incident said to have occurred during the period encompassed by the charges. Whilst the evidence concerning this incident comes solely from one of the complainants, being JM, it finds support in the evidence of TR that he engaged in similar activity with her, this activity constituting incident 6. I am satisfied that this evidence satisfies the test in s 97 and s 101, particularly taking into regard the directions that the jury will be given about how that evidence may be used. For the same reason, I am satisfied that the evidence set out in incidents 3 and 6 in the Notice should also be admitted.
In my opinion, incident 7 lacks probative value because of the imprecision of the date when this incident is said to have occurred and the fact that the evidence supporting the incident comes from one complainant only. In my opinion, incident 8 also lacks probative value because of its temporal remoteness from the dates of the alleged offences. I may say that whilst I have referred to the tests in s 97 and s 101 of the Evidence Act, I have also considered ss 135 and 137 of the Evidence Act. It appears to me that the tests involved in those sections are less onerous than that which is set out in s 101, but nevertheless I have considered them and applied them to the evidence.
Orders
I will allow the Crown to lead as tendency evidence the evidence set out in incidents 1, 2, 3, 5 and 6 of the Notice of Intention to Adduce Tendency Evidence to prove that the accused had a tendency to be sexually attracted to female children, and that he had a tendency to act on his tendency to be sexually attracted to female children. Of course, the second tendency is contingent upon the jury being satisfied that the accused had the first tendency, and the jury will have to be directed accordingly.
With respect to the remaining tendencies alleged by the Crown in the Notice, in my opinion, they should not be placed before the jury. In most instances they allege what might be referred to as generic sexual activity which cannot assist the jury, or in the case of the allegation of grooming is overly prejudicial.
I make a non-publication order with respect to these reasons until such time as the accused trial has been completed.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 13 March 2015 |
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