R v Ed

[2018] ACTSC 62

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v ED

Citation:

[2018] ACTSC 62

Hearing Date:

13 March 2018

DecisionDate:

13 March 2018

Before:

Murrell CJ

Decision:

Evidence of Incident 2 will be admitted as tendency evidence.

Evidence of Incident 1 will not be admitted.

Catchwords:

CRIMINAL LAW – EVIDENCE – Application to adduce tendency evidence – tendency of the accused to have a sexual interest in the complainant – tendency of the accused to act on his interest – whether proposed evidence has significant probative value – whether probative value outweighs prejudicial effect

Legislation Cited:

Evidence Act 2011 (ACT) ss 55, 97(1), 101(2)

Cases Cited:

R v Kisun [2016] ACTSC 212

IMM v The Queen [2016] HCA 14; 257 CLR 300

Vojneskiv The Queen [2016] ACTCA 57

Parties:

The Queen (Crown)

ED (Accused)

Representation:

Counsel

Mr P Dixon (Crown)

Ms K Musgrove (Accused)

Solicitors            

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Accused)

File Number:

SCC 314 of 2017

MURRELL CJ:

1. In prosecutions for sexual assault, the Crown seeks to rely on tendency evidence.

The charges

1. The accused is charged with seven counts of sexual misconduct towards his 13 year old cousin (the complainant). There are two counts of committing an act of indecency, four counts of engaging in sexual intercourse (including digital and penile penetration of the complainant’s anus and/or vagina) and one count of attempting to engage in sexual intercourse.  It is alleged that the offences occurred late one night between 4 and 9 July 2016, while the accused was visiting his aunt, the complainant’s mother.

1. About two weeks later, the complainant informed her mother that she had “had sex” with the accused and “didn’t want to do it”.  She was concerned that she had become pregnant.

The evidence to be adduced as tendency evidence

1. The Crown has given notice of intention to adduce evidence of the following incidents:

Incident 1

In the school holiday period between 2012 and 2013, the complainant visited the accused at his home in Sydney.  The complainant was in the accused’s bed.  As she was falling asleep, he digitally penetrated her.

Incident 2

In the school holiday period between 2015 and 2016, the complainant visited the accused at his home in Sydney.  The complainant was asleep in the accused’s bed.  The accused approached the complainant, began to kiss her and then digitally penetrated her.  In March 2016, the complainant told her friend S, that the accused had “touched her before” and “touched her inappropriately.”

1. Incidents 1 and 2 were not charged in these proceedings because the alleged conduct occurred in NSW.

1. The Crown seeks to rely upon the incidents as evidence that the accused had the tendencies:

(a)To have a particular state of mind – a sexual interest in the complainant.

(b)To act in a particular way – to utilise his relationship with the complainant to engage in sexual activities with her when they were alone in a bed together.

Issues

1. In R v Kisun [2016]…