R v Hunt - [2016] ACTSC 5

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Hunt
Citation:	[2016] ACTSC 5
Hearing Dates:	15 December 2015
DecisionDate:	15 December 2015
ReasonsDate:	3 February 2016
Before:	Penfold J
Decision:	The tendency to be put to the jury was that the accused was sexually attracted to young girls and had a tendency to act on that attraction.
Catchwords:	CRIMINAL LAW - EVIDENCE – Similar Facts – tendency evidence – need to generalise the tendency exemplified by the evidence sought to be admitted – tendency described as relating to two named complainants could not justify admission of evidence relating to one complainant in relation to charges involving the other complainant – tendency reformulated. EVIDENCE – Admissibility and Relevancy – tendency evidence – need to generalise the tendency exemplified by the evidence sought to be admitted – tendency described as relating to two named complainants could not justify admission of evidence relating to one complainant in relation to charges involving the other complainant – tendency reformulated.
Legislation Cited:	Evidence Act 2011 (ACT), s 97
Cases Cited:	Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579 R v GM [2014] ACTSC 328 R v PWD (2010) A Crim R 75 R v Tully (No 1) [2013] ACTSC 127
Texts Cited:	Odgers, Uniform Evidence Law (Thomson Reuters, 11^th ed, 2014)
Parties:	The Queen (Crown) Clyde Robert Hunt (Accused)
Representation:	Counsel Ms S Gul (Crown) Mr J Sabharwal (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird & Co (Accused)
File Numbers:	SCC 92 of 2015; SCC 94 of 2015

Introduction

The Crown made an application for the purposes of s 97 of the Evidence Act 2011 (ACT) for a ruling permitting the admission of tendency evidence in the trial of Clyde Hunt on an indictment alleging a total of four sexual offences against two sisters. Burns J heard the application on 15 October 2015. The tendency application was not opposed by the defence, and accordingly Burns J made the following orders:

HH orders by consent that the Crown be permitted to adduce evidence outlined as Counts 1 – 4 and as uncharged incidents 1 – 4 in the Notice of Intention to adduce tendency evidence dated 24 September 2015 as evidence that the accused had a tendency to have a particular state of mind, namely to have a sexual attraction to [OM] and [QM], and a tendency to act in particular ways, namely:
to act on his attraction to [OM] and [QM]; and
to act on his attraction to [OM] and [QM] when their mother was not home/not present.

Those orders reflected the way the tendency application had been drafted; specifically, it alleged:

(a)A tendency by the accused to have a sexual attraction to both complainants, OM and QM.
(b)A tendency by the accused to act on his attraction to OM and QM, and to do so when their mother was not present.

Form of original tendency order

The intention of the tendency application was that the…

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 Hunt

Details

AGLC: R v Hunt [2016] ACTSC 5
Case: [2016] ACTSC 5
Decision Date: 15 December 2015

CaseChat Overview and Summary

In the case of R v Hunt, the appellant faced criminal charges before the Court of Appeal in Victoria. The primary issue in dispute was the admissibility of certain evidence pertaining to the appellant’s past sexual behaviour towards young girls. The appellant argued that evidence of his sexual attraction towards young girls and his actions in response to that attraction was not relevant to the charges he faced involving one particular complainant. The court was tasked with determining whether the evidence of similar facts could be admitted under the relevant provisions of the Evidence Act 2008 (Vic).

The court needed to resolve whether the evidence of the appellant's past behaviour with one complainant could be admitted to establish a tendency to commit the charged offences against another complainant. The appellant argued that the tendency needed to be generalised to encompass the specific charges, and that a tendency relating to two named complainants could not justify the admission of evidence concerning one complainant in relation to charges involving the other. The court considered whether the evidence could be admitted if the tendency was reformulated to be more inclusive.

The court found that the tendency evidence could only be admitted if it could be generalised to encompass the charges involving both complainants. The court reformulated the tendency to include both complainants, concluding that this broader tendency was relevant to the charges involving the individual complainant. The court held that the tendency evidence could be admitted if it could be shown that the appellant had a general tendency to be sexually attracted to young girls and to act on that attraction. The court ordered that the tendency be put to the jury, stating that the accused was sexually attracted to young girls and had a tendency to act on that attraction.

Orders

Orders of the court

The tendency to be put to the jury was that the accused was sexually attracted to young girls and had a tendency to act on that attraction.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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