Case Title:	R v Garay (No 3)
Citation:	[2021] ACTSC 215
Hearing Dates:	7-9, 11, 15-18, and 21-25 June 2021
Submissions Last Received:	8 July 2021
DecisionDate:	31 August 2021
Before:	Loukas-Karlsson J
Decision:	See [838]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – Trial by judge alone – historic child sexual offences – act of indecency on young person – sexual intercourse with a young person – temporally confined dates of some allegations – motive to lie – no case submission
Legislation Cited:	Crimes Act 1900 (ACT) ss 56, 62B, 66B, 92E, 92K Crimes Act 1958 (Vic) ss 47A, 47(2) Criminal Procedure Act 2009 (Vic) ss 47A, 47(2) Evidence Act 2011 (ACT) ss 65, 66, 97A, 104, 110, 165, 165B Evidence (Miscellaneous Provisions) Act1991 (ACT) ss 4AF, 57, 64, 72, 80B, 101 Limitation Act 1985 (ACT) s 21C Limitation Act 1969 (NSW) s 6A Limitation Amendment (Child Abuse) Act 2016 (NSW) Supreme Court Act 1933 (ACT) ss 68B, 68C
Cases Cited:	Binns v R [2017] NSWCCA 280 De Silva v The Queen [2019] HCA 48; 375 ALR 1 Director of Public Prosecutions v Jarvis (a pseudonym) [2018] VSCA 173; 55 VR 543 Doney v The Queen [1990] HCA 51; 171 CLR 207 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Graham v The Queen [1998] HCA 61; 195 CLR 606 Hall v The Queen [2021] SASCFC 16 Hughes v The Queen [2017] HCA 20; 263 CLR 338 IMM v The Queen [2016] HCA 14; 257 CLR 300 Johnson v Miller [1937] HCA 77; 59 CLR 467 Jones v Dunkel [1959] HCA 8; 101 CLR 298 KRM v The Queen [2001] HCA 11; 206 CLR 221 Liberato v The Queen [1985] HCA 66; 159 CLR 507 LMD v The Queen [2012] VSCA 164 Longman v The Queen [1989] HCA 60; 168 CLR 79 Louizos v R, R v Louizos [2009] NSWCCA 71; 194 A Crim R 223 Mahmood v Western Australia [2008] HCA 1; 232 CLR 397 McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 Palmer v The Queen [1998] HCA 2, 193 CLR 1 Pell v The Queen [2019] VSCA 186 RA v R [2007] NSWCCA 251; 175 A Crim R 221 Robinson v The Queen [1999] HCA 42; 197 CLR 162 R v Bauer [2018] HCA 40; 266 CLR 56 R v Bilick (1984) 36 SASR 322; 11 A Crim R 452 R v Cattle (No 2) [2020] ACTSC 59 R v Connors (No 2) [2016] ACTSC 333 R v DM [2010] ACTSC 137 R v Droudis (No 14) [2016] NSWSC 1550 R v H (1995) 83 A Crim R 402 R v Jacobs [1993] 2 Qd R 541 R v Jovanovic (1997) 42 NSWLR 520; 98 A Crim R 1 R v JT [2017] NSWCCA 272 R v LK

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 (No 3)

Details

AGLC: R v Garay (No 3) [2021] ACTSC 215
Case: [2021] ACTSC 215
Decision Date

CaseChat Overview and Summary

- **Parties, Dispute, and Court:**
John Paul Garay, the accused, faced charges related to sixteen counts of committing acts of indecency on a young person and two counts of sexual intercourse with a young person. The case was heard in the Supreme Court of the Australian Capital Territory by Loukas-Karlsson J.

- **Legal Issues:**
The court had to decide on the credibility of the complainant's evidence, the relevance of the accused's good character prior to the discovery of child exploitation material, the admissibility of tendency evidence, and the specific charges' compliance with the requirement for precise dates in the charges.

- **Court's Reasoning and Outcome:**
The court found the complainant's evidence highly credible and reliable, while the accused's evidence was less convincing. The court did not rely on tendency evidence or the accused's good character post-discovery of child exploitation material. The court scrutinized the specificity of dates in the charges and found that some counts did not meet the required specificity, leading to acquittals on those counts. The court found the accused guilty on several counts where the specificity of dates was adequately addressed in the prosecution's case.

- **Final Orders:**
The court acquitted the accused on several counts due to insufficient specificity of dates, while finding him guilty on others. The detailed verdicts are outlined in the court's final orders, specifying the counts for which the accused was acquitted and those for which he was found guilty.

Orders