R v Hicks

[2019] ACTSC 323

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Hicks

Citation:

[2019] ACTSC 323

Hearing Date:

20 November 2019

DecisionDate:

20 November 2019

Before:

Elkaim J

Decision:

See [15]

Catchwords:

CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce tendency evidence –whether reasonable notice has been given – whether the evidence has significant probative value – whether the probative value of the evidence is outweighed by its potential prejudicial effect

Legislation Cited:

Evidence Act 2011 (ACT) ss 97, 101

Cases Cited:

Hughes v The Queen [2017] HCA 20; 263 CLR 338
IMM v The Queen [2016] HCA 14; 257 CLR 300
The Queen v Bauer [2018] HCA 40; 359 ALR 359

Parties:

The Queen (Applicant)

Darrell Hicks (Respondent)

Representation:

Counsel

Ms S Jerome (Applicant)

Mr R Davies (Respondent)

Solicitors

ACT Director of Public Prosecutions (Applicant)

Legal Aid ACT (Respondent)

File Number:

SCC 131 of 2019

ELKAIM J:

1. The accused has pleaded not guilty to three counts in an indictment dated 15 November 2019. Two of the counts allege an act of indecency in the presence of a person under the age of 16 years. The third count alleges sexual intercourse with a young person.

1. On 18 November 2019 the Crown filed an Application in Proceeding requesting leave to adduce tendency evidence in accordance with a notice of the same date. No issue is taken with the late filing of the Application or the question of reasonable notice.

1. The Application is supported by an affidavit of Maree Skalistis affirmed on 18 November 2019.

1. The specific tendencies that are alleged are that the accused had a sexual interest in the complainant, that he acted on that interest by engaging in sexualised behaviour with her and in her proximity.

1. The Crown wishes to lead, as tendency evidence, 10 incidents. The first seven relate to uncharged acts. The last three make up the three counts in the indictment.

1. As an alternative to the tendency application, the Crown wishes to rely on the evidence as context or relationship evidence.

1. The written submissions of the respective parties referred to the authorities that are now taken to dictate applications of this sort. They include the High Court cases of IMM v The Queen [2016] HCA 14; 257 CLR 300, Hughes v The Queen [2017] HCA 20; 263 CLR 338 and The Queen v Bauer [2018] HCA 40; 359 ALR 359.

1. The Crown has proposed a complicated set of orders in which different incidents are to be permitted to support the different tendencies. My initial impression, which has endured, was that the formula proposed by the Crown involved an overly complicated regime which a jury would find difficult to follow and which directions would face a significant difficulty in overcoming.

1. When I pointed this difficulty out to the Crown the problem was acknowledged and the Crown, fairly and properly, amended the application to advance only one tendency, namely that the accused had a sexual interest in the complainant.

1. On this basis the accused made a number of concessions, although still maintained that some of the incidents, or at least parts of them, did not establish the relevant tendency.

1. The accused concentrated on incidents 1, 5 and 7. The point made about the first incident was that it was no more than a “party trick”, which did not suggest any sexual interest. I disagree. I think it does have significant probative value to the extent that it shows, bearing in mind the respective ages of the parties, a sexual interest in the complainant. However supposedly amusing the trick may have been, it was overwhelmingly an act displaying the accused’s private parts to a 14 year old girl.

1. In relation to the incident 5 I think there is some force in the accused’s submissions in relation to the statement “you look good in shorts” and the accused inviting the complainant to get dressed in the accused’s room in front of him. The comment about the shorts could conceivably be entirely innocent and objectively complimentary. The invitation to dress would have been allowed but for the fact that the complainant kept her clothing in the accused’s room. There is some equivocality about the statements which I think renders them subject to exclusion under s 101 of the Evidence Act 2011 (ACT).

1. In relation to incident 7, the argument was that dressing up in the man-kini did not necessarily suggest a sexual interest. I disagree. The description of the outfit is one that describes very revealing apparel. As with incident 1 the comparative ages of the accused and the complainant are consistent with, and highly supportive of, a conclusion that the outfit was worn to show the complainant private parts of the accused’s body which illustrates a sexual interest in the complainant.

1. Finally, the Crown sought leave to rely on the incidents, in addition to them supporting the alleged tendency, to also be admissible as relationship evidence. I do not allow this application for two reasons: Firstly because the Crown’s written submissions in support of the very late application clearly state that relationship evidence will only be pursued as an alternative to the application to lead tendency evidence, and secondly because the directions that will be necessary in respect of the relationship evidence are likely to display an inconsistency with the directions given about the tendency evidence.

1. Subject to the parts excluded from incident 5, I allow the 10 incidents to be adduced in evidence to show that the accused had a sexual interest in the complainant.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 20 November 2019