R v Kerry (a pseudonym) (No 3) - [2022] ACTSC 171

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kerry (a pseudonym) (No 3)
Citation:	[2022] ACTSC 171
Hearing Date:	13 July 2022
DecisionDate:	14 July 2022
Before:	Elkaim J
Decision:	(a) The Crown is permitted to adduce the evidence of AA pursuant to s 65 of the Evidence Act 2011. (b) The leave given in the preceding order is subject to the following restrictions: i. The leave applies only to the representations made in the following documents: 1. The statement made by AA to NSW Police on 23 October 2019. 2. The evidence in chief interview conducted on 15 July 2020. 3. The text message exchanges between AA and the respondent and between AA and the respondent’s wife. ii. The use of the representations in the trial is subject to any specific rules of evidence as to their individual admissibility.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – application for leave to adduce evidence pursuant to s 65 of the Evidence Act 2011 (ACT)
Legislation Cited:	Evidence Act 2011 (ACT) ss 65, 135, 137
Cases Cited:	Munro v The Queen [2014] ACTCA 11 R v Bauer [2018] HCA 40; 266 CLR 56 R v Clark [2001] NSWCCA 494; 123 A Crim R 506 R v Kerry [2022] ACTSC 80 R v Kerry (No 2) [2022] ACTSC 111 R v TAI, Alatini [2016] NSWCCA 207
Parties:	The Queen ( Crown) Zeph Kerry (a pseudonym) ( Accused)
Representation:	Counsel B Morrisroe ( Crown) T Jackson ( Accused)
Solicitors Director of Public Prosecutions ( Crown) Legal Aid ACT ( Accused)
File Numbers:	SCC 39 of 2022

ELKAIM J:

Mr Kerry (a pseudonym), the respondent in the current application, is facing trial on an indictment filed on 5 May 2022, alleging two counts of indecent assault committed between 31 December 1971 and 10 December 1975 and between 31 December 1979 and 3 August 1983 respectively.

Each count is in respect of a different complainant. Both complainants were under the age of 16 when the alleged offending took place. The complainant in the first count, AA, is deceased.

On 19 April 2022 I gave leave to the Crown to subpoena documents, concerning AA, which were held by the St John of God Burwood Hospital (R v Kerry [2022] ACTSC 80).

On 24 May 2022, after documents were produced pursuant to the above subpoena, I gave leave for the inspection of those documents “to the extent that they have been copied and placed in an envelope marked “confidential for parties only”” (R v Kerry (No 2) [2022] ACTSC 111).

On 7 June 2022 the Crown filed an application in proceeding seeking leave to adduce representations made by AA, pursuant to s 65 of the Evidence Act 2011 (ACT) (Evidence Act). Notice of the Crown’s intention to adduce the evidence was given to the respondent and filed on 7 June 2022.

The application is opposed by the respondent.

The application…

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 Kerry (a pseudonym) (No 3)

Details

AGLC: R v Kerry (a pseudonym) (No 3) [2022] ACTSC 171
Case: [2022] ACTSC 171
Decision Date

CaseChat Overview and Summary

The case of R v Kerry (a pseudonym) (No 3) involved an application by the Crown to adduce evidence of representations made by a deceased complainant, AA, who was the sister (through adoption) of the respondent, Zeph Kerry. The Crown sought leave to adduce evidence under s 65 of the Evidence Act 2011 (ACT), which allows for the admission of hearsay evidence if the maker of the representation is not available to give evidence. The application was opposed by the respondent who argued that the evidence should be excluded under ss 135 and 137 of the Act.

The court considered whether the representations made by AA were made in circumstances that made it highly probable that the representation was reliable. The court found that, with two exceptions, the circumstances in which the histories and complaints were given were such that it was highly probable that the statements were reliable. The two exceptions were the statement made by AA when she was an inpatient at the St John of God Hospital in November or December 2003 and the alleged complaint made to AA’s niece in 2018.

The court also considered whether the representations should be excluded under ss 135 and 137 of the Act. The court found that the representations were highly probative and the prejudice that existed was that the evidence could not be challenged. However, the court was satisfied that the probative value of the evidence outweighed the danger of unfair prejudice to the accused and that stringent directions to the jury would address the respondent’s inability to cross-examine AA.

The court made orders permitting the Crown to adduce the evidence of AA pursuant to s 65 of the Evidence Act 2011. The leave was subject to restrictions that the leave applied only to the representations made in certain documents and that the use of the representations in the trial was subject to any specific rules of evidence as to their individual admissibility.

Orders