R v GG - [2017] ACTSC 12

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v GG
Citation:	[2017] ACTSC 12
Hearing Date:	15 December 2016
DecisionDate:	10 February 2017
Before:	Burns J
Decision:	The Crown’s application to lead the tendency evidence is refused. Counts 1, 2 and 3 on the indictment are to be severed from the indictment and a separate trial will be had on those Counts.
Catchwords:	CRIMINAL LAW – Particular Offences – offences against the person – sexual intercourse without consent – sexual intercourse with lineal descendant – act of indecency EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce tendency evidence – whether the evidence has significant probative value – whether the probative value of the evidence is outweighed by potential prejudicial effect – application refused. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to sever the indictment – where complainants are known to each other – permitted to sever indictment.
Legislation Cited:	Evidence Act 2011 (ACT) ss 97, 101 Magistrates Court Act 1930 (ACT) s 90B
Cases Cited:	De Jesus v The Queen [1986] HCA 65; 68 ALJR 1 IMM v The Queen [2016] HCA 14; 330 ALR 382 R v Bullen [1998] 4 VR 621 R v CX [2016] ACTSC 106 R v Ford [2009] NSWCCA 306; 273 ALR 286 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 R v Smith [2008] NSWCCA 247; 190 A Crim R 8 R v Tully (No. 1) [2013] ACTSC 127
Parties:	The Queen (Crown) GG (Accused)
Representation:	Counsel Ms S Gul (Crown) Mr J Lawton (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Accused)
File Numbers:	SCC 165 of 2015; SCC 166 of 2016; SCC 148 of 2016; SCC 149 of 2016

BURNS J:

By an application in proceedings, undated but filed on or about 16 November 2016, the Crown seeks to be permitted to adduce evidence that the accused had certain tendencies at his trial for alleged sexual offences against his niece IT, and his daughter UG.

The indictment presented by the Crown contains 14 Counts. Counts 1 and 2 allege sexual offences against IT in the period 1 December 2012 to 4 March 2012. Count 3 alleges that the accused assaulted IT occasioning her actual bodily harm. Counts 4 to 7 and 9 to 14 allege sexual offences against UG in the period from September 2012 to December 2015. Count 8 alleged that the accused assaulted UG occasioning her actual bodily harm.

The grounds of the application are expressed as follows:

(a) A fact in issue at the trial will be whether the accused engaged in the conduct alleged... The allegation is that the accused committed various sexual acts on each complainant, including having penile vaginal sexual intercourse with each of them, forcing them to perform fellatio on them [sic, semble him] in circumstances where they were frightened of him, subject to threats from him and/or felt they could not resist.

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 GG

Details

AGLC: R v GG [2017] ACTSC 12
Case: [2017] ACTSC 12
Decision Date: 10 February 2017

CaseChat Overview and Summary

The case of R v GG involves the appellant who was charged with various sexual offences against his step-daughter and his daughter. The appellant was alleged to have engaged in sexual intercourse without consent with his step-daughter and his daughter, as well as commit acts of indecency with them. The case was heard in a relevant Australian court.

The legal issues that the court was required to decide related to the admission of evidence. The Crown sought to adduce tendency evidence in relation to the appellant’s character, which the defence opposed. The Crown also sought to sever certain counts of the indictment, which the defence opposed as well. The court had to determine whether the probative value of the evidence was outweighed by the potential prejudicial effect and whether the severance of the indictment was permissible.

The court found that the probative value of the tendency evidence was not significant enough to outweigh the potential prejudicial effect. The court held that the evidence did not have significant probative value in proving the charges against the appellant. The court also found that the severance of the indictment was permissible as the complainants were known to each other. The court held that it was in the interests of justice to sever the indictment and have a separate trial on those counts. The court's reasoning was based on the principles of judicial discretion to admit or exclude evidence and the principles of fairness and justice.

The court's orders were that the Crown’s application to lead the tendency evidence was refused. Counts 1, 2 and 3 on the indictment were to be severed from the indictment and a separate trial would be had on those counts. The court's orders were based on its findings of fact and the principles of law that applied to the case. The orders were necessary to ensure that the trial was fair and just and that the appellant's rights were protected.

Orders

Orders of the court

The Crown’s application to lead the tendency evidence is refused. Counts 1, 2 and 3 on the indictment are to be severed from the indictment and a separate trial will be had on those Counts.

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.