R v EKR - [2021] QDC 89

DISTRICT COURT OF QUEENSLAND

CITATION:

R v EKR [2021] QDC 89

PARTIES:

R

(respondent)

v

EKR (applicant)

FILE NO:

82/2019

DIVISION:

Criminal

PROCEEDING:

s 590AA application

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:
4 May 2021 (orders re: “HML evidence”)
10 May 2021 (orders re: “Longman direction”)

21 May 2021 (reasons)

DELIVERED AT:

Maroochydore

HEARING DATE:

4 May 2021 and 10 May 2021

JUDGE:

Long SC, DCJ

ORDER:

(1)        On 4 May 2021 (re: admissibility of “HML evidence”):

(a)   The evidence that the defendant adjusted the complainant’s hoop dress, is irrelevant and therefore inadmissible.

(b) The evidence of the complainant relating to an allegation of an uncharged incident which occurred in 1994 is admissible.

(2)        On 10 May 2021 (orders re: “Longman direction”):

The trial conducted in respect of the allegations presently before the Court does attract the operation of s 132BA of the Evidence Act 1977 and the jury should be directed in accordance with s 132BA of the Evidence Act 1977.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – SEXUAL OFFENCES – SIMILAR FACT – ADMISSIBILITY AND RELEVANCE – where, on 17 July 2020, the Court of Appeal ordered a retrial of the 11 of 15 counts of sexual offences against the same complainant and on which the applicant was found guilty on 5 September 2019 – where this Court convened for that purpose on 4 May 2021 – where the respondent intends to rely upon an allegation that the applicant adjusted the complainant’s hoop dress as evidence demonstrative of the applicant’s sexual interest in the complainant, in accordance with the reasoning in HML v The Queen (2008) 235 CLR 334 – whether such evidence is capable of being demonstrative of a sexual interest in the complainant – whether the evidence is relevant and admissible.

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – SEXUAL OFFENCES – SIMILAR FACT – ADMISSIBILITY AND RELEVANCE – where the respondent intends to rely upon an allegation of an uncharged act committed by the applicant towards the complainant as evidence demonstrative of the applicant’s sexual interest in the complainant, in accordance with the reasoning in HML v The Queen (2008) 235 CLR 334 – where the applicant submits that the admissibility of such evidence would be prejudicial including on the basis that the uncharged act is of strikingly similar conduct to the counts on which the applicant was acquitted in the original trial and would not allow him the “full benefit” of his prior acquittals – whether the evidence is relevant and admissible.

CRIMINAL LAW – SEXUAL OFFENCES – WARNING REQUIRED OR ADVISABLE – WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN DIRECTION –where the applicant was convicted on 11 of 15 counts of sexual offences against the same complainant on 5 September 2019 by jury trial – where the Court of Appeal ordered a retrial of the 11 counts on which the applicant was found guilty on 17 July…

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 EKR

Details

AGLC: R v Ekr [2021] QDC 89
Case: [2021] QDC 89
Decision Date: 4 May 2021 (orders re: “HML evidence”) 10 May 2021 (orders re: “Longman direction”) 21 May 2021 (reasons)

CaseChat Overview and Summary

The case of R v EKR concerned a retrial ordered by the Court of Appeal for 11 of 15 counts of sexual offences against the same complainant, following a conviction on 5 September 2019. The retrial was convened on 4 May 2021. The respondent intended to present evidence of an uncharged act by the applicant as proof of his sexual interest in the complainant, aligning with the principles established in HML v The Queen. The applicant argued that this evidence was prejudicial and that it bore a striking similarity to the conduct for which he was acquitted during the original trial. The court was tasked with determining whether this evidence was relevant and admissible, considering the prejudicial impact it might have on the applicant.

The court had to address two main legal issues. Firstly, it needed to assess whether the evidence of the uncharged act was capable of demonstrating the applicant's sexual interest in the complainant and if it was relevant and admissible. Secondly, the court had to decide whether the jury should be directed in accordance with the Longman direction or section 132BA of the Evidence Act 1977 (Qld), considering the significant delay between the alleged offences and the complaint. The court examined the admissibility of similar fact evidence and the appropriate jury direction in light of the new legislative provisions introduced after the original trial.

The court concluded that the evidence regarding the applicant adjusting the complainant's hoop dress was irrelevant and therefore inadmissible. However, the evidence of the complainant concerning an uncharged incident from 1994 was deemed admissible. Regarding the jury direction, the court found that section 132BA of the Evidence Act 1977 applied to the retrial. Consequently, the jury should be directed in accordance with this section, acknowledging the significant forensic disadvantage caused by the delay in prosecuting the offence.

The final orders of the court were that the evidence of the applicant adjusting the complainant’s hoop dress was irrelevant and inadmissible, while the evidence concerning the uncharged incident from 1994 was admissible. Additionally, the court directed that the jury should be informed in accordance with section 132BA of the Evidence Act 1977, recognising the significant disadvantage caused by the delay in prosecuting the offence.

Orders

Orders of the court

(1) On 4 May 2021 (re: admissibility of “HML evidence”):

(a) The evidence that the defendant adjusted the complainant’s hoop dress, is irrelevant and therefore inadmissible.

(b) The evidence of the complainant relating to an allegation of an uncharged incident which occurred in 1994 is admissible.

(2) On 10 May 2021 (orders re: “Longman direction”):

The trial conducted in respect of the allegations presently before the Court does attract the operation of s 132BA of the Evidence Act 1977 and the jury should be directed in accordance with s 132BA of the Evidence Act 1977.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In this case, there was nothing in the evidence to which objection was taken which was directed at showing that the defendant was guilty of any offence of which he had been previously acquitted or even having any such tendency. Rather, the evidence was directed at and to be relied upon in the identified way of being relevant to the likelihood that the defendant committed the offences upon which he was to be retried.Application of s 132BA of the Evidence Act 1977 When the Court convened for this retrial on 4 May 2021, a jury was then selected from the panel brought before the Court under s 36 of the Jury Act 1995, which provides:“36 (1)When a civil or criminal trial is about to begin, the sheriff must arrange for the attendance of a jury panel before the court.(2)The panel must be formed from among the persons (the relevant prospective jurors) who—(a)have been summoned for jury service for the relevant jury service period; and(b)have not, after being summoned, been excused from jury service or excluded from the list of prospective jurors because they are not qualified for jury service; and(c) are not currently serving on a jury.(3)The panel must be formed by selection from among the relevant prospective jurors in a way decided by the sheriff subject to any relevant direction issued by the Senior Judge Administrator under section 13(c).(4)When the panel is formed, the sheriff must give the instructions to the members of the panel necessary to ensure their attendance before the court.” For the defendant, it is contended that this Court is not required to instruct this jury in accordance with s 132BA of the Evidence Act 1977, which provides as follows:“132BA Delay in prosecuting offence(1)This section applies in relation to a criminal proceeding in which there is a jury.(2)The judge may, on the judge’s own initiative or on the application of a party to the proceeding, give the jury a direction under this section if the judge is satisfied the defendant has suffered a significant forensic disadvantage because of the effects of delay in prosecuting an offence the subject of the proceeding.(3)For subsection (2), a significant forensic disadvantage is not established by the mere fact of delay in prosecuting the offence.(4)In giving the direction, the judge—(a) must inform the jury of—(i) the nature of the disadvantage; and (ii)the need to take the disadvantage into account when considering the evidence; but(b) must not warn or in any way suggest to the jury that—(i)it would be dangerous or unsafe to convict the defendant; or(ii)the complainant’s evidence should be scrutinised with great care.(5)However, the judge need not give the direction if there are good reasons for not doing so.(6)The judge must not, other than under this section give the jury a direction about the disadvantages suffered by the defendant because of the effects of delay in prosecuting the offence.(7)In this section—delay, in prosecuting an offence, includes delay in reporting the offence.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v EKR [2021] QDC 89
PARTIES:	R (respondent) v *EKR* (applicant)
FILE NO:	82/2019
DIVISION:	Criminal
PROCEEDING:	s 590AA application
ORIGINATING COURT:	Maroochydore District Court
DELIVERED ON:	4 May 2021 (orders re: “HML evidence”) 10 May 2021 (orders re: “Longman direction”) 21 May 2021 (reasons)
DELIVERED AT:	Maroochydore
HEARING DATE:	4 May 2021 and 10 May 2021
JUDGE:	Long SC, DCJ
ORDER:	*(1) On 4 May 2021 (re: admissibility of “HML* evidence”): (a) The evidence that the defendant adjusted the complainant’s hoop dress, is irrelevant and therefore inadmissible. (b) The evidence of the complainant relating to an allegation of an uncharged incident which occurred in 1994 is admissible. (2) On 10 May 2021 (orders re: “Longman direction”): The trial conducted in respect of the allegations presently before the Court does attract the operation of s 132BA of the Evidence Act 1977 and the jury should be directed in accordance with s 132BA of the Evidence Act 1977.**
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – SEXUAL OFFENCES – SIMILAR FACT – ADMISSIBILITY AND RELEVANCE – where, on 17 July 2020, the Court of Appeal ordered a retrial of the 11 of 15 counts of sexual offences against the same complainant and on which the applicant was found guilty on 5 September 2019 – where this Court convened for that purpose on 4 May 2021 – where the respondent intends to rely upon an allegation that the applicant adjusted the complainant’s hoop dress as evidence demonstrative of the applicant’s sexual interest in the complainant, in accordance with the reasoning in HML v The Queen (2008) 235 CLR 334 – whether such evidence is capable of being demonstrative of a sexual interest in the complainant – whether the evidence is relevant and admissible. CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – SEXUAL OFFENCES – SIMILAR FACT – ADMISSIBILITY AND RELEVANCE – where the respondent intends to rely upon an allegation of an uncharged act committed by the applicant towards the complainant as evidence demonstrative of the applicant’s sexual interest in the complainant, in accordance with the reasoning in HML v The Queen (2008) 235 CLR 334 – where the applicant submits that the admissibility of such evidence would be prejudicial including on the basis that the uncharged act is of strikingly similar conduct to the counts on which the applicant was acquitted in the original trial and would not allow him the “full benefit” of his prior acquittals – whether the evidence is relevant and admissible. CRIMINAL LAW – SEXUAL OFFENCES – WARNING REQUIRED OR ADVISABLE – WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN DIRECTION –where the applicant was convicted on 11 of 15 counts of sexual offences against the same complainant on 5 September 2019 by jury trial – where the Court of Appeal ordered a retrial of the 11 counts on which the applicant was found guilty on 17 July…