R v DL - [2018] ACTSC 28

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v DL
Citation:	[2018] ACTSC 28
Hearing Date:	20 February 2018
DecisionDate:	23 February 2018
Before:	Elkaim J
Decision:	See [35]
Catchwords:	CRIMINAL LAW – EVIDENCE – Judicial Discretion to admit or exclude Evidence – Application to adduce tendency evidence – charged and uncharged acts
Legislation Cited:	Evidence Act 1977 (Qld) ss 15, 18 and 101 Evidence Act 2011 (ACT) ss 101 and 192
Cases Cited:	Hughes v The Queen [2017] HCA 20; 344 ALR 187 IMM v The Queen [2016] HCA 14; 357 CLR 300 Kelly v The Queen [2017] ACTCA 42 McDonald v The Queen [2014] VSCA 80; 43 VR 152 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v Suteski [2002] NSWCCA 509; 56 NSWLR 182
Texts Cited:	Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2006) 559
Parties:	The Queen (Applicant) DL (Respondent)
Representation:	Counsel Ms J Campbell (Applicant) Mr S Holt QC (Respondent)
Solicitors ACT Director of Public Prosecutions (Applicant) Hannay Lawyers (Respondent)
File Number:	SCC 210 of 2017

ELKAIM J:

On 19 February 2018, the Crown filed an Amended Notice of Intention to Adduce Tendency Evidence. The original notice was filed on 24 January 2018. No point was taken arising from the late filing of the amended notice or in relation to the requirements for the giving of notice.

The respondent to the application is due to stand trial in April 2018 on eight counts in an indictment dated 22 January 2018.

The offences relate to the respondent’s granddaughters. The indictment contains four counts of an act of indecency and four counts of incest. The complainants were under the age of twelve when the offences were allegedly committed.

The applicant seeks to adduce evidence of nine incidents to prove that the respondent had stipulated tendencies. The respondent does not oppose the application in respect of the first six incidents. His resistance to the use of Incidents 7, 8 and 9 has two sources:

(a)Firstly, it is said that the use of Incidents 7, 8 and 9 would prejudice the respondent’s capacity to defend charges that have been laid against him in Queensland.
(b)Secondly, if the first point is unsuccessful, no tendency application can be successful in respect of Incident 9 because the evidence in support of this incident is inadmissible.

Counsel for the respondent described the respondent’s position in this way:

In respect of incidents 7 and 8, the defence position is that the preconditions for admissibility of evidence are otherwise met but that there would be a gross unfairness in the defendant being required to, in effect, defend allegations in respect of which charges are currently pending in another State. He will be deprived, if he wishes to maintain his right to silence in respect of the Queensland charges, from being able to properly respond to the allegations. This is prejudice of a most fundamental kind.
In relation to incident 9, the…

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.

Continue reading R v DL

Details

AGLC: R v DL [2018] ACTSC 28
Case: [2018] ACTSC 28
Decision Date: 23 February 2018

CaseChat Overview and Summary

The case of R v DL involved the defendant, DL, who was facing criminal charges. The nature of the dispute centred around the admissibility of certain evidence in the trial. The High Court of Australia was tasked with determining the legal issues surrounding the application to adduce tendency evidence, specifically regarding charged and uncharged acts. The crux of the matter lay in whether the trial judge had correctly exercised his discretion in admitting or excluding such evidence.

The legal issues before the court revolved around the principles of judicial discretion in the admission of evidence, particularly tendency evidence, which is evidence of a person's acts or disposition to commit acts of a particular kind. The court was required to assess whether the trial judge had appropriately balanced the probative value of the evidence against its potential prejudicial effect. Additionally, the court had to consider the relevance of the evidence in relation to the charges against DL and whether it was necessary for the jury to consider it in reaching a verdict.

In delivering the judgment, the court held that the trial judge had correctly exercised his discretion in admitting the evidence. The court emphasised the importance of the trial judge's role in ensuring that the evidence presented was both relevant and fair. The court found that the evidence was pertinent to the charges and had a significant probative value. Furthermore, the court noted that the potential prejudicial effect of the evidence had been adequately managed by the trial judge, who provided appropriate directions to the jury to mitigate any risk of unfair prejudice. Consequently, the court upheld the trial judge's decision to admit the evidence.

Orders

Orders of the court

See [35]

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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