R v NBB (No 5) - [2020] ACTSC 190

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v NBB (No 5)
Citation:	[2020] ACTSC 190
Hearing Dates:	24–26 June 2020
DecisionDate:	15 July 2020
Before:	Murrell CJ
Decision:	Not guilty on all counts.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge alone trial – Incest with person under 10 years
Legislation Cited:	COVID-19 Emergency Response Act 2020 (ACT) Crimes Act 1900 (ACT) s 62(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 4AM, 49, 57, 74, 80B Supreme Court Act 1993 (ACT) ss 68B, 68C
Cases Cited:	R v NBB (No 2) [2020] ACTSC 85
Parties:	The Queen (Crown) NBB (Accused)
Representation:	Counsel K Lee (Crown) D Berents (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Accused)
File Number(s):	SCC 230 of 2019 SCC 293 of 2019

MURRELL CJ

As a result of amendments to s 68B of the Supreme Court Act 1993 (ACT) (SCA) effected by the COVID-19 Emergency Response Act 2020 (ACT), during the “emergency period”, an accused may elect to be tried by a judge alone in relation to “excluded offences”, including the subject offences: SCA s 68B(3A)(b).

The accused elected to be tried by a judge alone and his legal practitioner certified that he had been advised in relation to the election and had made the election freely.

When arraigned before me sitting as a judge alone, the accused pleaded not guilty to the following charges:

(a)Count 1: between 1 January and 31 December 2015, he engaged in sexual intercourse with the complainant, his stepchild, a person under the age of 10 years (anal penetration using a pencil);
(b)Count 2: between 1 January and 31 December 2015, he engaged in sexual intercourse with the complainant, his stepchild, a person under the age of 10 years (anal penetration using a pencil later on the same day as Count 1);
(c)Count 3: between 1 June and 31 July 2016, he engaged in sexual intercourse with the complainant, his stepchild, a person under the age of 10 years (anal penetration using a stick in the backyard);
(d)Count 4: between 1 January 2015 and 20 August 2016, he engaged in sexual intercourse with the complainant, his stepchild, a person under the age of 10 years (anal penetration using the nozzle of a shower gel container during a bath time when the complainant’s sister LB was present);
(e)Count 5: between 11 and 20 August 2016, he engaged in sexual intercourse with the complainant, his stepchild, a person under the age of 10 years (digital penetration involving the Xbox and/or observed by the complainant’s sister DC);
(f)Count 6: between 11 and 20 August 2016, he engaged in sexual intercourse with the complainant, his stepchild, a person under the age of 10 years (digital penetration);
(g)Count 7: between 1 and 20 August 2016, he engaged in sexual intercourse with the complainant, his stepchild, a person under the age of 10 years (digital penetration with fingers wrapped in undies, witnessed by the complainant’s sister AC);…

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 NBB (No 5)

Details

AGLC: R v NBB (No 5) [2020] ACTSC 190
Case: [2020] ACTSC 190
Decision Date: 15 July 2020

CaseChat Overview and Summary

This case involved a trial where the defendant, NBB, was accused of engaging in incest with a person under 10 years of age, as per section 62(1) of the Crimes Act 1900 (ACT). The trial was presided over by a single judge in the relevant Australian court. The complainant, who was 12 years old at the time of the trial, had alleged multiple instances of sexual intercourse with the defendant.

The central legal issue was whether the defendant had indeed engaged in the alleged acts of sexual intercourse with the complainant. The court had to consider the credibility of the complainant's evidence, which was partly based on delayed complaints and the reliability of such testimony. Additionally, the court had to evaluate whether the other alleged offences, if proven, could be used as tendency evidence to support the prosecution's case. The court needed to ensure that each offence relied upon as tendency evidence was established beyond reasonable doubt before it could be considered. The court's reasoning involved a detailed examination of the complainant's credibility, the admissibility of tendency evidence, and the specific elements of the charges as outlined in the statute.

Upon thorough consideration of the evidence, the court found that the prosecution had not proven the charges beyond reasonable doubt. Consequently, the defendant was acquitted on all counts. The court's decision was based on a careful assessment of the complainant's credibility and the reliability of the evidence presented, ultimately leading to the defendant's acquittal.

Orders

Orders of the court

Not guilty on all counts.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

These disclosures (complaint evidence) can be used in two ways. First, the evidence may be relevant to the complainant’s credit. I must consider whether there was a delay in complaint, the terms of the complaints, and whether any delay reflects adversely on the complainant, or whether there were good reasons for any delay. The absence of complaint or a delay in making a complaint does not necessarily indicate that the allegation concerning an offence is false. There may be good reasons why any victim of a sexual offence (especially a child) does not make, or hesitates to make, a complaint: EMPA s 80B(2). Second, as each of the complaints was made when the events in question would have been “fresh in the memory” of the complainant, each complaint provides some evidence of the facts asserted. However, complaint evidence is not of the same quality and independence as direct evidence. As the incidents upon which the prosecutor relied as tendency evidence for each offence are the other alleged offences, I must first be satisfied beyond reasonable doubt that a particular offence occurred before I can use that offence as tendency evidence. I must then be satisfied that the tendency evidence shows that the accused had the asserted tendency or tendencies at the date of the offence under consideration. If I am satisfied that there was a tendency or tendencies at the relevant time, then I treat that tendency or tendencies as one circumstance supporting the prosecution case––not as direct evidence that the alleged offence actually occurred, but as one circumstance that may make it more likely that the accused committed the offence in question. I cannot reason that, because the accused misconducted himself on the occasion(s) the subject of the tendency evidence, he is generally a bad person and, because he is generally a bad person, it is more likely that he committed the offence under consideration. Apart from the incidents the subject of the charges, the prosecution relied on other general evidence of sexual misconduct by the accused towards the complainant. If the evidence was accepted, the only basis upon which I could rely upon it is to show that the alleged conduct the subject of the charge(s) was not isolated, to give context to the conduct and to show that it did not occur “out of the blue”. Each charge alleged incest with a person under 10 years of age, contrary to s 62(1) of the Crimes Act 1900 (ACT). Section 62 provides: In relation to each charge, the Crown had to prove each of the following legal elements beyond reasonable doubt: In relation to each charge, there was no dispute about elements (c), (d) or (e), nor was there any question about whether, if any of the alleged acts of sexual intercourse had occurred, it was intentional. In relation to each charge, the sole issue was whether the accused had engaged in the alleged act of sexual intercourse with the complainant. At the time of the trial, the complainant was 12 years old. He was in Year 7 at school.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.