R v Kerry (a pseudonym) (No 4)

[2022] ACTSC 174

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Kerry (a pseudonym) (No 4)

Citation:

[2022] ACTSC 174

Hearing Date:

15 July 2022

DecisionDate:

15 July 2022

Before:

Elkaim J

Decision:

(i)     Order 1 in the Crown’s application in proceeding, in respect of tendency evidence, filed on 7 June 2022.

(ii)    The matter is listed before the Registrar on 21 July 2022 for the allocation of a hearing date.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application – applicant to adduce tendency evidence – deceased complainant prejudice arising

Legislation Cited:

Evidence Act 2011 (ACT) ss 97, 97A, 101

Cases Cited:

The Director of Public Prosecutions (ACT) v DL [2018] ACTCA 61; 14 ACTLR 62

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

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:

1. This is the second in a series of Crown applications that I have heard this week concerning evidence to be adduced in the trial of the respondent.

1. This application, filed on 7 June 2022, seeks leave to adduce tendency evidence pursuant to s 97 of the Evidence Act 2011 (ACT). The evidence proposed to be led for this purpose is made up of representations by the complainant (AA) in the first of two counts in the indictment. The complainant in the second count is a different person.

1. The representations were the subject of the first application I heard. I found in favour of the Crown in respect of some, but not all, of the representations (R v Kerry (a pseudonym) (No 3) [2022] ACTSC 171).

1. The issue now before me is whether or not the representations I permitted to be adduced as evidence can also be used to prove a tendency on the part of the respondent.

1. Section 97 requires that notice of the intention to adduce tendency evidence be given to the accused person. This was done. The notice was filed on 7 June 2022. No issue is taken by the respondent in respect of the giving of notice.

1. The application is supported by an affidavit of Ms Erin Priestly, affirmed on 6 June 2022. The application was opposed by the respondent.

1. The tendencies that the Crown wishes to prove were described in the notice as follows:

That the accused had a tendency to act in particular ways and have particular states of mind, namely:

1.     That the accused had a sexual interest in girls under 16 years of age and acted on that sexual interest by engaging in sexual acts with each girl when they visited his home, for his own sexual gratification.

2.     The accused had a continuing sexual interest in (AA) and acted on that sexual interest by engaging in sexual activity with (AA) for his own sexual gratification.

1. The first tendency is said to be relevant to both counts one and two in the indictment. The second tendency is relevant only to the first count. I think it necessary to state the charges:

(a)Count one alleges that between 31 December 1971 and 10 December 1975 the accused assaulted AA in Canberra, AA then being a person under 16, and at the time or immediately before or after the assault, the respondent committed an act of indecency upon her. The allegation is framed as a course of conduct charge.

(b)Count two alleges that between 31 December 1979 and 3 August 1983, again in Canberra, the accused assaulted BB, who was under 16, and at the time of, or immediately before or after the assault, committed an act of indecency upon her. This is also a course of conduct charge.

1. The parties are agreed on the applicable legal principles. Leave requires a consideration of both s 97(1) and s 101(2) of the Evidence Act. Because the proceedings involve sexual offences against a child, s 97A is also relevant.

1. There can be little doubt that the representations have significant probative value. I do not need to consider this further. It is conceded by the respondent. The respondent also does not take any issue with any matters arising from s 97A.

1. The respondent’s resistance to the application is derived from s 101(2), which states:

101Further restrictions on tendency evidence and coincidence evidence presented by prosecution

…

(2)Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.

1. In my consideration of the application to rely upon the representations by AA, I considered the question of unfair prejudice to the respondent against the probative value of the evidence.

1. Without more, for me to reject the Crown’s application now before me would be to undo my earlier reasoning and conclusion about the balancing act that it was necessary to perform. I had concluded that the prejudice to the respondent could be met, or cured, by appropriate directions to the jury.

1. The question here however is whether or not there is, as submitted by the respondent, effectively an extra layer of prejudice arising from the respondent’s inability to cross-examine AA. The respondent has submitted that he is already at a disadvantage (or suffering an unfair prejudice) in defending the case against him because AA cannot be cross-examined. This disadvantage will be exacerbated if the respondent cannot only not challenge AA on her representations, but also not challenge her in respect of any matter giving rise to the alleged tendencies.

1. I add here that the respondent’s submissions, both oral and in writing, substantially accept that but for the prejudice arising from AA being deceased (and therefore not capable of being cross-examined) the tendency application would succeed.

1. The difference created by AA being deceased, but my having allowed the bulk of the s 65 application, is the extra prejudice, as described above, which will arise in meeting the tendency allegations.

1. I initially thought an appropriate course could be to restrict the tendency application to the first count. The respondent however pointed out that such a course might add an extra complication to the directions to the jury and perhaps even be contrary to the legislative intention behind s 97A.

1. The respondent rejected my suggested ‘compromise’, preferring instead to advocate for the rejection of the entire tendency application.

1. I understood the Crown to agree with the respondent that the directions that would be needed on my compromise solution could become too complex. Rather, submitted the Crown, there was no extra prejudice that could not be dealt with by directions. As the Crown pointed out, the specific directions that will already be needed, can cover the tendency application.

1. The Crown referred me to The Director of Public Prosecutions (ACT) v DL [2018] ACTCA 61; 14 ACTLR 62, in particular at [38]:

It was not submitted that incidents 7, 8 and 9 contained an additional forensic disadvantage. Such a disadvantage might be in the accused’s capacity to meet the actual evidence for an extraneous reason, and where such a disadvantage could not have been addressed by the Court. Examples could include critical witnesses having died and evidence having been destroyed.

1. On one reading of the above passage, it provides support for the respondent’s assertion of an extra layer of prejudice. However, I have already found that the death of AA is a disadvantage that can be addressed by the Court through directions.

1. If this disadvantage can be addressed by the Court, then, as submitted by the Crown, it must follow that the same disadvantage (the inability to cross-examine) arising in respect of the tendency allegations, can also be the subject of directions.

1. Having reached this conclusion, and bearing in mind that the respondent’s opposition to the tendency application centred on the prejudice arising from the inability to cross-examine AA, it follows that the application should be allowed.

1. The trial does not yet have a hearing date. I think it necessary to now put it before the Registrar for the allocation of the date.

1. Accordingly, I make the following orders:

(i)Order 1 in the Crown’s application in proceeding, in respect of tendency evidence, filed on 7 June 2022.

(ii)The matter is listed before the Registrar on 21 July 2022 for the allocation of a hearing date.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: