R v DL

[2018] ACTCA 9

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

R v DL

Citation:

[2018] ACTCA 9

Hearing Date:

28 February 2018

DecisionDate:

28 February 2018

ReasonsDate:

6 April 2018

Before:

Burns J

Decision:

See [19]

Catchwords:

APPEAL – GENERAL PRINCIPLES – Application for leave to appeal from interlocutory orders – tendency evidence

Legislation Cited:

Evidence Act 2011 (ACT) ss 97, 101

Supreme Court Act1933 (ACT) ss 37, 37J(1)

Cases Cited:

Miles v R [2013] ACTCA 52

Quach v Butt [2017] ACTCA 4

Parties:

The Queen (Applicant)

DL (Respondent)

Representation:

Counsel

Ms J Campbell (Applicant)

Mr S Holt QC (by telephone link) (Respondent)

Solicitors

ACT Director of Public Prosecutions (Applicant)

Hannay Lawyers (Respondent)

File Number:

ACTCA 3 of 2018

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Elkaim J

Date of Decision:         23 February 2018

Case Title:  R v DL

Citation: [2018] ACTSC 28

BURNS J:

1. The respondent has been charged with 4 counts of incest and 4 counts of committing an act of indecency on a person under 10 years of age. The charges relate to allegations that he sexually abused his granddaughters SL and UL between 2005 and 2010. His trial was due to commence on 3 April 2018.

1. On 19 February 2018 the Crown filed an Amended Notice of Intention to Adduce Tendency Evidence (the Notice) seeking to adduce evidence of 9 incidents to prove that the respondent had stipulated tendencies. The respondent did not oppose the application with respect to the first 6 incidents, but did oppose it with regard to incidents 7, 8 and 9.

1. On 23 February 2018 Elkaim J made the following order:

That the Crown be permitted to adduce tendency evidence outlined as Incidents 1 to 6 in the Amended Notice of Intention to Adduce Tendency Evidence dated 19 February 2018 as tendency evidence pursuant to s 97 of the Evidence Act 2011 (ACT), in particular to prove that the accused had a tendency to act in particular ways and have particular states of mind in the following ways:

(a)   To have a sexual interest in pre-pubescent females.

(b)   To have a sexual interest in his pre-pubescent female granddaughters.

(c)   To have a disinhibited disregard of the risk of discovery of his sexual conduct towards his granddaughters by other family members.

(d)   To use his familial relationships to obtain access to his pre-pubescent granddaughters so he could engage in sexual activities with them.

(e)   To engage in sexual conduct with his granddaughters whilst other family members are present or nearby.

1. By an Application dated 26 February 2018 the Crown sought leave to appeal from the interlocutory orders made by Elkaim J, in effect refusing the Crown’s application to lead evidence of incidents 7, 8 and 9 as tendency evidence. The grounds of the proposed appeal were annexed to the affidavit of Amanda Mifsud in support of the application for leave to appeal:

(a) Elkaim J erred in finding that the word “prejudice” in s 101(2) of the