R v Estuardo Ioberto Pazmino - [2010] ACTSC 148

HUMAN RIGHTS ACT

R v ESTUARDO IOBERTO PAZMINO
[2010] ACTSC 148 (25 November 2010)

CRIMINAL LAW – sexual intercourse without consent – acts of indecency – eight separate incidents – seven complainants

EVIDENCE – pre-trial application – application to sever the indictment – application partially granted

EVIDENCE – pre-trial application – application to adduce evidence of tendency and coincidence – whether evidence has significant probative value – whether probative value substantially outweighs prejudicial effect – unrelated issues – unfair prejudice – application partially dismissed – allegations of similar and underlying unity – relevant to rebut suggestion of accident – relevant to rebut lack of awareness of inappropriateness – relevant to general context – application partially granted

Crimes Act 1900 (ACT), ss 50, 54, 60
Criminal Code 2002 (ACT)
Evidence Act 1995 (Cth), ss 55, 95, 97, 98, 101, 135, 137
Crimes Act 1958 (Vic), s 398A (repealed)
Human Rights Act 2004 (ACT), s 21

Perry v R (1982) 150 CLR 580
Hoch v R (1988) 165 CLR 292
Pfennig v The Queen (1994) 182 CLR 461
Thompson v The King [1918] AC 221
R v Lockyer (1996) 89 A Crim R 457
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51
R v Ellis (2003) 58 NSWLR 700
R v Papamitrou [2004] VSCA 12; (2004) 7VR 375
R v Fletcher [2005] 156 A Crim R 308
R v Harker [2004] NSWCCA 427
Phillips v The Queen (2005) 225 CLR 303
R v Smith (2008) 190 A Crim R 8
R v Ford [2009] NSWCCA 306
NAM v The Queen [2010] VSCA 95

No. SCC 318 of 2009

Judge: Higgins CJ
Supreme Court of the ACT

Date: 25 November 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCC 318 of 2009
AUSTRALIAN CAPITAL TERRITORY )

R

v

ESTUARDO IOBERTO PAZMINO

ORDER

Judge:  Higgins CJ
Date:  25 November 2010
Place:  Canberra

THE COURT ORDERS THAT:

The application to sever counts 1 - 5 from counts 6 - 12 on the indictment dated 28 June 2010 is granted.
The application to further sever the indictment dated 28 June 2010 is refused.
The application to lead evidence of the complainants in counts 6 - 12 as evidence of tendency and coincidence in counts 1 - 5 is refused.
The application to lead evidence of the complainants in counts 6 - 12 as evidence of tendency and coincidence supporting each of the counts in the other or others of them is granted.

By indictment dated 28 June 2010 the accused has been charged with 12 counts alleging various sexual offences as follows:

FIRST COUNT

... on the 5^th day of May 2009 at Canberra in the Australian Capital Territory Estuardo Pazmino engaged in sexual intercourse with [Complainant KW] without her consent being reckless as to whether she was consenting to the sexual intercourse.

SECOND COUNT

AND FURTHER THAT on the 5^th day of May 2009 at Canberra in the Australian Capital Territory Estuardo Pazmino committed an act…

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.

Keep reading for free

Create a free CaseChat account to read R v Estuardo Ioberto Pazmino and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] ACTSC 148
Decision Date: 25 November 2010

CaseChat Overview and Summary

The defendant, Estuardo Ioberto Pazmino, was charged with various offences of sexual intercourse without consent and acts of indecency arising from eight separate incidents involving seven complainants. The matter was heard in the relevant court where the defendant sought to sever the indictment into two groups of counts and to adduce evidence of tendency and coincidence. The court had to decide whether the evidence of the complainants in counts 6 - 12 could be used as evidence of tendency and coincidence in counts 1 - 5, and whether the evidence had significant probative value and whether its probative value substantially outweighed its prejudicial effect.

The court considered the nature of the evidence and the issues in the case. It determined that the evidence of the complainants in counts 6 - 12 was relevant to rebut suggestions of accident, lack of awareness of the inappropriateness of the defendant’s conduct, and to provide a general context for the jury. The court found that the probative value of the evidence substantially outweighed its prejudicial effect, except in relation to counts 1 - 5, where the court found that the evidence was not relevant to rebut any suggestion of accident or lack of awareness of the inappropriateness of the defendant’s conduct in those counts.

The court granted the application to sever counts 1 - 5 from counts 6 - 12 on the indictment dated 28 June 2010. It refused the application to further sever the indictment and to lead evidence of the complainants in counts 6 - 12 as evidence of tendency and coincidence in counts 1 - 5. However, it granted the application to lead evidence of the complainants in counts 6 - 12 as evidence of tendency and coincidence supporting each of the counts in the other or others of them. The court's decision provides clarity on the admissibility of evidence in similar cases and ensures that the defendant's right to a fair trial is protected.

Orders

Orders of the court

The application to sever counts 1 - 5 from counts 6 - 12 on the indictment dated 28 June 2010 is granted.

The application to further sever the indictment dated 28 June 2010 is refused.

The application to lead evidence of the complainants in counts 6 - 12 as evidence of tendency and coincidence in counts 1 - 5 is refused.

The application to lead evidence of the complainants in counts 6 - 12 as evidence of tendency and coincidence supporting each of the counts in the other or others of them is granted.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

FIRST COUNT	... on the 5^th day of May 2009 at Canberra in the Australian Capital Territory Estuardo Pazmino engaged in sexual intercourse with [Complainant KW] without her consent being reckless as to whether she was consenting to the sexual intercourse.
SECOND COUNT	AND FURTHER THAT on the 5^th day of May 2009 at Canberra in the Australian Capital Territory Estuardo Pazmino committed an act…