R v Garay (No 2)

[2020] ACTSC 331

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Garay (No 2)

Citation:

[2020] ACTSC 331

Hearing Date:

10 December 2020

DecisionDate:

11 December 2020

Before:

Elkaim J

Decision:

See [30]

Catchwords:

CRIMINAL LAW – EVIDENCE – Pre-trial Application – Application to adduce tendency evidence – historic child sexual offences – whether the evidence has significant probative value –   whether or not the accused had a sexual interest in young males

Legislation Cited:

Evidence Act 2011 (ACT) ss 97A, 101, 192.

Cases Cited:

R v Garay [2020] ACTSC 317

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 of 2020; SCC 118 of 2020

ELKAIM J:

1. The respondent to this application is facing an indictment containing 16 counts of acts of indecency on a young person and two counts of sexual intercourse with a young person.

1. The offences are alleged to have occurred between 1986 and 1988 when the single complainant was aged between 12 and 14.

1. Loukas-Karlsson J heard a tendency application on 18 August 2020. In her decision, on 30 November 2020, her Honour permitted the Crown to lead certain tendency evidence (R v Garay [2020] ACTSC 317).

1. On 1 September 2020 amendments to the Evidence Act 2011 (ACT) came into effect. The relevant amendments relate to ss 97A and 101. These amendments are a product of the report of the Royal Commission into Institutional Responses to Child Sexual Abuse. It is apparent that included in the intent of the amendments is the facilitation of criminal prosecutions against persons alleged to have committed crimes against children many years ago.

1. Since the amendments, the Crown has filed a further application to lead tendency evidence which reached a final form by an amended application dated 8 December 2020. The application was supported by two affidavits of Ms Rhiannon McGlinn affirmed on 26 November 2020 and 4 December 2020 respectively.

1. Some parts of the application (relating to Incidents 3 and 4) were not contested by the respondent.

1. The dispute before me has concerned Incidents 5, 6 and 7 in support of what is referred to as Tendency Two:

To have a sexual interest in male children and to act on that interest by acquiring and watching visual recordings depicting male children engaging in sexual acts, for his own sexual gratification.

1. For present purposes there is no material distinction between Incidents 5, 6 and 7 so that success or rejection of one will flow through to the remaining incidents.

1. Accordingly it is only necessary to describe Incident 5. On 20 December 2019 the police executed a search warrant at the home of the respondent. In the course of the search the police located a USB stick containing 16 video clips of, undisputed, child exploitation material. The police asked the respondent about the material. The police officer described the conversation…