R v Jade Saunders

[2012] ACTSC 143

R v JADE SAUNDERS                 
[2012] ACTSC 143 (31 August 2012)

CRIMINAL LAW – PARTICULAR OFFENCES – Offences against the person – sexual intercourse with a person under the age of 16 years

CRIMINAL LAW – EVIDENCE – Crown application to adduce tendency evidence – the act alleged as the offence to be proved cannot be used to prove the accused had a tendency to act in the way alleged – application refused

Supreme Court Act 1933 (ACT), s 68C

R v H (1995) 83 A Crim R 402

No. SCC 259 of 2008

Judge:              Burns J
Supreme Court of the ACT

Date:               31 August 2012

IN THE SUPREME COURT OF THE       )
  )          No. SCC 259 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          

R

v

JADE SAUNDERS 

ORDER

Judge:  Burns J
Date:  31 August 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. A verdict of not guilty is entered.

1. On 13 September 2010 the accused, Jade Saunders, was arraigned on an indictment dated 18 May 2010 alleging that on 13 April 2003 at Canberra in the Australian Capital Territory he engaged in sexual intercourse with JR, a person under the age of 16 years, namely 15 years.  To this single count he entered a plea of not guilty.  On 26 July 2010 the accused elected to be tried by judge alone.

1. The matter came on for trial on 18 June 2012.  At that time I allowed the Crown to amend the indictment to allege an offence occurring between 11 April 2003 and 15 April 2003.  At that time the Crown also sought leave to adduce tendency evidence.  It was accepted that the evidence the subject of the application would, in any event, be relevant as relationship evidence, and the parties were content for me to leave determination of whether the evidence would be used as tendency evidence until the end of the trial. 

1. Section 68C of the Supreme Court Act 1933 (ACT) provides with respect to a judge alone trial:

Verdict of judge in criminal proceedings

(1)      A judge who tries criminal proceedings without a jury may make any finding        that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2)      The judgment in criminal proceedings tried by a judge alone must include the        principles of law applied by the judge and the findings of fact on which the           judge relied.

(3)      In criminal proceedings tried by a judge alone, if a territory law requires a           warning or direction to be given, or a comment to be made, to a jury in the      proceedings, the judge must take the warning, direction or comment into         account in considering his or her verdict.

1. In R v Mulcahy [2010] ACTSC 98 (at [13]-[24]), Nield AJ set out the directions and considerations that should be given at a judge alone trial:

13.       A criminal trial is governed by rules.  The fundamental rules are…