R v No

[2017] ACTSC 421

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v NO

Citation:

[2017] ACTSC 421

Hearing Date:

2 August 2017

DecisionDate:

4 August 2017

Before:

Mossop J

Decision:

The Application in Proceedings dated 15 June 2017 is dismissed.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – admissibility of tendency evidence – sexual offences – single tendency incident alleged – evidence not of significant probative value – application dismissed

Legislation Cited:

Crimes Act 1900 (ACT), ss 52(1), 54(1)

Evidence Act 2011 (ACT), ss 55, 97, 97(1)(b), 101, 192A

Cases Cited:

Hughes v The Queen [2017] HCA 20; 92 ALJR 92

IMM v The Queen [2016] HCA 14; 257 CLR 300

Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370

Parties:

The Queen (Crown)

NO (Accused)

Representation:

Counsel

J Hiscox (Crown)

G Brady SC (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Kamy Saeedi Law (Accused)

File Numbers:

SCC 31 of 2017

SCC 34 of 2017

MOSSOP J:

Introduction

1. This is an application under s 192A of the Evidence Act 2011 (ACT) for a pre-trial ruling on the admissibility of tendency evidence.

1. The accused is charged with a number of offences including sexual assault in the second degree (s 52(1) of the Crimes Act 1900 (ACT)) and sexual intercourse without consent (s 54(1) of the Crimes Act).  These two offences are alleged to have occurred on the same day some time in the first half of 2011.

What is alleged in this case

1. The Crown case is that in 2010, the accused met the complainant and the two started a relationship.  They initially kept their relationship private from family and friends.  One day in early 2011, the accused called the complainant to his house.  When the complainant arrived the accused met her at the door.  He was only wearing underpants and was intoxicated.  The accused grabbed the complainant and began kissing her aggressively.  He directed the complainant to his bedroom by pushing her with his body.  The complainant said, “[NO], I don’t want to do this while you’re like this.  I am going to leave now.”  She said “no” three or four times.  The accused said, “you’re a dirty slut.  Who’s my bitch, your my dirty bitch.”  The accused’s hands were all over the complainant’s body and he was forcefully groping her, causing her pain.  The accused grabbed the complainant’s throat and pushed her up against a wall.  He used such force that she was unable to move away.  This is alleged to be Count 1, sexual assault in the second degree.  The accused moved the complainant to his bed and removed her clothes.  The accused said, “you’re not going anywhere.”  He then had sexual intercourse with her on the bed, with his penis penetrating her vagina.  He ejaculated inside her.  This is alleged to be Count 2, sexual intercourse without consent.

What is the tendency incident

1. The tendency incident is alleged to have occurred in 2010 prior to…