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:

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.

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.

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).

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.

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.

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

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.

The first tendency is…

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 4)

Details

AGLC: R v Kerry (a pseudonym) (No 4) [2022] ACTSC 174
Case: [2022] ACTSC 174
Decision Date

CaseChat Overview and Summary

This case involved an application by the Crown to adduce tendency evidence in the trial of the respondent, Zeph Kerry (a pseudonym), on charges of sexual offences against minors. The application was filed on 7 June 2022, and the matter was heard by Elkaim J on 15 July 2022. The primary legal issue before the court was whether the Crown could use the representations made by the complainant in the first count of the indictment as tendency evidence under s 97 of the Evidence Act 2011 (ACT), despite the prejudice arising from the complainant's inability to be cross-examined due to her death.

The court examined the relevant provisions of the Evidence Act, particularly ss 97, 97A, and 101. The Crown argued that the probative value of the evidence outweighed any potential unfair prejudice to the respondent, and that the prejudice arising from the deceased complainant's inability to be cross-examined could be addressed through appropriate jury directions. The respondent contended that the inability to cross-examine the deceased complainant created an additional layer of prejudice that could not be remedied through directions. The court found that the prejudice arising from the inability to cross-examine could be addressed through directions, and that there was no extra prejudice that could not be dealt with in this manner. Consequently, the application to adduce tendency evidence was allowed.

In summary, the court granted the Crown's application to adduce tendency evidence, holding that the probative value of the evidence outweighed the danger of unfair prejudice to the respondent. The court emphasised that the prejudice arising from the deceased complainant's inability to be cross-examined could be addressed through appropriate jury directions. The trial date was to be allocated by the Registrar on 21 July 2022.

Orders