R v Garay - [2020] ACTSC 317

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Garay
Citation:	[2020] ACTSC 317
Hearing Date:	18 August 2020
DecisionDate:	18 August 2020
ReasonsDate:	30 November 2020
Before:	Loukas-Karlsson J
Decision:	See [32]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – pre-trial application – admissibility of tendency evidence – child sexual offences
Legislation Cited:	Crimes Act 1900 (ACT) ss 56, 65, 92E and 92K Evidence Act 2011 (ACT) ss 55, 97, 98, 100 and 101
Cases Cited:	Hughes v The Queen [2017] HCA 20; 263 CLR 338 IMM v The Queen [2016] HCA 14; 247 CLR 300 The Queen v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 Vojneski v The Queen [2016] ACTCA 57; A Crim R 370
Parties:	The Queen (Crown) John Paul Garay (Accused)
Representation:	Counsel S Jerome (Crown) J Campbell (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Numbers:	SCC 117 and 118 of 2020

LOUKAS-KARLSSON J:

Introduction

The prosecution in this matter sought a pre-trial ruling on the admissibility of tendency evidence pursuant to s 97 of the Evidence Act 2011 (ACT) (Evidence Act).

The accused is charged with the following offences allegedly committed between 28 January 1986 and 5 December 1988 against a single complainant aged between 12 and 14 years old:

(a)One count of maintaining a sexual relationship with a young person, contrary to s 56 of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 25 years’ imprisonment.
(b)Two counts of sexual intercourse with a young person, contrary to s 92E of the Crimes Act. The maximum penalty for this offence is 14 years’ imprisonment.
(c)16 counts of acts of indecency with a young person, contrary to s 92K(2) of the Crimes Act. The maximum penalty for this offence is 10 years’ imprisonment.

In addition to the above charges, the accused has pleaded guilty to one count of possession of child exploitation material, contrary to s 65 of the Crimes Act. This charge has been committed to the Supreme Court for sentence and is not the subject of the current application.

The prosecution sought to adduce evidence to demonstrate the following tendencies:

(a)Tendency 1: A tendency to have a sexual interest in the complainant and to act on that sexual interest by masturbating the complainant’s penis when laying down together for his own sexual gratification.
(b)Tendency 2: A tendency to have a sexual interest in teenage boys and act on that sexual interest by lying in his bed with the teenage boy and engaging in sexual activity with them for his own sexual gratification.

In demonstrating these tendencies, the prosecution sought to rely on evidence of three incidents:

(a)Incident 1: The Flowerdale Road Incident;
(b)Incident 2: The Webster Road Incident; and
(c)Incident 3: The Wanniassa House Incident.

At the hearing on 18 August 2020, the prosecution indicated that Tendency 2 was no longer relied upon,…

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 Garay

Details

AGLC: R v Garay [2020] ACTSC 317
Case: [2020] ACTSC 317
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard a pre-trial application in the case of R v Garay, where the accused faces multiple charges of sexual offences against a complainant aged between 12 and 14 years old between 1986 and 1988. The prosecution sought to adduce tendency evidence under s 97 of the Evidence Act 2011 (ACT) to demonstrate a tendency to have a sexual interest in the complainant and act on that interest by masturbating the complainant's penis when laying down together for the accused's own sexual gratification. The prosecution sought to rely on two incidents, the Flowerdale Road incident and the Webster Road incident, which were alleged to demonstrate the accused's tendency.

The legal issues before the court were whether the evidence was relevant under s 55 of the Evidence Act, whether it had significant probative value under s 97, and whether its probative value substantially outweighed any prejudicial effect under s 101. The court found that the evidence was relevant, had significant probative value, and its probative value substantially outweighed any prejudicial effect. The court held that the prosecution could adduce evidence of the two incidents as tendency evidence, which would be cross-admissible as proof of the charged offences.

The court's reasoning was based on the High Court's decisions in Hughes v The Queen, IMM v The Queen, and The Queen v Bauer (a pseudonym), which established the principles for assessing the admissibility of tendency evidence. The court found that the tendency evidence strongly supported the proof of the elements of the charged offences and was influential in the context of fact-finding. The court also considered the potential prejudicial effects of the evidence, but found that they were outweighed by the significant probative value of the evidence.

The court made orders permitting the prosecution to adduce tendency evidence in relation to the cross-admissibility of the charged counts and to lead evidence of the two incidents as tendency evidence. The reasons for judgment are not to be published, other than to the parties, until the accused's trial is complete.

Orders