R v HI

[2015] ACTSC 268

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v HI

Citation:

[2015] ACTSC 268

Hearing Date(s):

27 August 2015

DecisionDate:

2 September 2015

Before:

Burns J

Decision:

See [4] – [7]

Category:

Procedural and other rulings

Catchwords:

EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence.

Parties:

The Queen (Crown)

HI (Accused)

Representation:

Counsel

Mr T Hickey (Crown)

Mr J Lawton (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Ben Aulich & Associates (Accused)

File Number(s):

SCC 253 of 2014

BURNS J:

1. The accused is charged with 1 count of incest and 18 counts of committing an act of indecency with a young person. His trial is scheduled to commence next Monday 7 September 2015.

1. The Crown proposes to lead tendency evidence at trial. The accused opposes the Crown application to lead tendency evidence and submits that the present indictment should be severed so that there would be two separate trials.

1. These applications came before me last Friday 27 August 2015, at which time the parties agreed to the hearing of the applications being conducted on the papers. I have had regard to an Amended Notice of Intention to Adduce Tendency Evidence dated 19 August 2015, the amended Crown submissions dated 27 August 2015 and written submissions on behalf of the accused dated 26 August 2015.

1. Because of the closeness of the trial date, I will simply give my rulings, and I will, if it becomes necessary, publish reasons for my rulings at a later time:

(a)the Crown will be permitted to lead evidence of incidents 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 16 and 17 to establish that the accused had the following tendencies:

(i)a tendency to have a particular state of mind, namely:

·to have a sexual attraction to young girls;

·to have a sexual attraction to his step daughter KT; and

·to have a sexual attraction to his niece LC;

(ii)a tendency to act in a particular way, namely:

·to act on his sexual attraction to young girls;

·to act on his sexual attraction to KT; and

·to act on his sexual attraction to LC.

1. Evidence of incident 11 will not be admitted as tendency evidence, but will be admissible as relationship evidence.

1. Evidence of incidents 13, 14, 15 and 18 will not be admitted as either tendency or relationship evidence.

1. The ruling admitting evidence as tendency evidence may be reviewed during the course of the trial, depending on the evidence as it is adduced. 

1. The application to sever the indictment is refused.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: 2 September 2015