R v Malone - [2022] ACTSC 23

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Malone
Citation:	[2022] ACTSC 23
Hearing Date:	11 February 2022
Decision Date:	15 February 2022
Before:	Elkaim ACJ
Decision:	See [37]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-Trial Application – application to adduce tendency evidence – probative value – prejudice to the
defendant
Legislation Cited:	Evidence Act 2011 (ACT) ss 55, 97, 101, 137
Cases Cited:	IMM v The Queen [2016] HCA 14; 257 CLR 300 Hughes v The Queen [2017] HCA 20; 263 CLR 338 Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370
Parties:	The Queen (Crown) Kevin Malone (Accused)
Representation:	Counsel
S Jerome (Crown)
M Jones SC (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown)
Legal Aid ACT (Accused)
File Numbers:	SCC 211 of 2021
SCC 212 of 2021
ELKAIM ACJ:
1․	The accused is facing trial on an indictment dated 22 December 2021. There are three
counts. Counts 1 and 2 allege sexual intercourse against a female child under the age
of 10 years. I will refer to this complainant as AA. The third count alleges an act of
indecency upon a teenage female, who I will refer to as BB.
2․	On 4 February 2022 the Crown filed an application in proceeding seeking permission to
adduce tendency evidence as described in a Notice filed on 23 December 2021. This
application is supported by an affidavit of Mr Danyon O’Rourke affirmed on 22 December
2021 and an affidavit of Mr Colin Balog affirmed on 28 January 2022.
3․	No issue was taken as to the provision of reasonable notice of the application.
4․	On 7 February 2022 the accused filed an application in proceeding to sever the counts
involving AA from the count concerning BB. This application is supported by an affidavit
of Ms Georgia Le Couteur sworn on 7 February 2022.
5․	Two matters were agreed by the parties:

(a)

The Crown wishes to rely on two separate tendencies. The respondent did not oppose the orders sought in respect of Tendency One as described in the Notice.

(b)

The tendency application should be heard first because its result would dictate the result of the severance application. If the tendency application succeeded, the severance application would be dismissed. If the tendency application failed, the severance application would not be opposed.

6․	Tendency Two was stated as follows:

To stupefy an unaccompanied, young female and engage in sexual activity with the young female, at his house, for his own sexual gratification.

7․	The tendency allegation relates to incidents 3 and 4 as described in the Notice. Incident
3 alleges that AA, then aged about six or seven years, was being minded at the
accused’s home. The accused is alleged to have given AA a glass of lemonade which
she drank and then, within about 20 minutes, fell asleep on the accused’s bed. She
alleges that the accused ‘spooned’ her and inserted his penis into her anus.
8․

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 Malone

Details

AGLC: R v Malone [2022] ACTSC 23
Case: [2022] ACTSC 23
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the Crown sought permission to adduce tendency evidence against Kevin Malone, who was facing trial on charges of sexual assault and indecent acts against two complainants. The Crown's application was premised on two alleged tendencies, with the second tendency being contested by Malone. The second tendency alleged that the accused had a pattern of stupefying young females, giving them substances, and engaging in sexual activities with them. Malone opposed the application on multiple grounds, arguing that the evidence was not relevant, did not have significant probative value, and would cause unfair prejudice.

The court found that while the evidence regarding the accused's conduct with AA was straightforward and probative, the evidence concerning BB was more tenuous. Despite this, the court determined that the provision of marijuana to BB, even if requested by her, could be seen as probative of the accused's intent to facilitate a sexual assault. The court acknowledged the significant probative value of the evidence, particularly in light of the nature of the offences and the vulnerability of the victims. However, the court concluded that the prejudicial effect of the evidence concerning AA, especially considering the young age of the victim and the nature of the offences, outweighed the probative value. This led to the conclusion that the evidence concerning BB should also be excluded under the Evidence Act.

Consequently, the court denied the Crown's application to adduce the second tendency evidence and severed the charge concerning BB from the other counts. The final orders permitted the Crown to adduce tendency evidence as set out in Tendency One but not Tendency Two and severed Count 3 from Counts 1 and 2.

Orders