R v Peter John Fitzpatrick - [2012] ACTSC 107

R v PETER JOHN FITZPATRICK
[2012] ACTSC 107 (13 July 2012)

CRIMINAL LAW – EVIDENCE – Crown application to adduce Tendency Evidence – evidence sought to be adduced by the Crown was highly prejudicial to the accused – the probative value of the evidence did not substantially outweigh the prejudicial effect – application refused

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Information, Indictment or Presentment – Defence application to sever the indictment – found that there would be an unacceptable risk of prejudice to the accused if counts were heard in one trial – indictment severed – application allowed

Evidence Act 1995 (Cth), ss 97
Evidence Act 2011 (ACT), ss 55, 56, 97, 101

R v Johnston [2012] ACTSC 89
R v Ford (2009) 201 A Crim R 451
R v Shamouil [2006] CCA 112
De Jesus v The Queen (1986) 61 ALJR 1

No. SCC 183A of 2011
No. SCC 183B of 2011

Judge: Burns J
Supreme Court of the ACT

Date: 13 July 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 183A of 2011
AUSTRALIAN CAPITAL TERRITORY )          No. SCC 183B of 2011

R

v

PETER JOHN FITZPATRICK

REASONS FOR RULING

Judge:  Burns J
Date:  13 July 2012
Place:  Canberra

On 12 August 2011 the ACT Director of Public Prosecutions presented an Indictment dated 11 August 2011 alleging four offences against the accused, Peter John Fitzpatrick. The Indictment alleged that the accused committed three counts of committing an act of indecency on NB, being a person under the age of 10 years, between 25 July 2005 and 3 May 2006 at Canberra in the Australian Capital Territory. The final count alleged that between the same two dates the accused committed an act of indecency on LB, being a person under the age of 10 years, in the Australian Capital Territory. On 31 January 2012 the accused was arraigned on that Indictment, and entered pleas of not guilty to each count.

On or about 7 March 2012 the ACT Director of Public Prosecutions served on the accused a Notice of Intention to Adduce Tendency Evidence (the tendency notice) under s 97 (1) of the Evidence Act 1995 (Cth) (the EA 1995). On 9 March 2012 the ACT Director of Public Prosecutions lodged an application returnable on 19 March 2012 seeking the following orders:

1.That the prosecution be permitted to adduce evidence of the acts committed upon each complainant, that is [LB] and [NB] as tendency evidence pursuant to section 97 of the Evidence Act1995 (Cth), in particular, to prove that the defendant had a tendency to be sexually attracted to young girls, particularly his step daughters, and further that the accused had a tendency to act upon that sexual interest by engaging in sexualised touching with his step daughters.

On 14 March 2012 the accused lodged an application seeking orders that the tendency evidence that the Crown proposed to adduce was not admissible as tendency evidence, and that the Count on the Indictment alleging…

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 Peter John Fitzpatrick

Details

AGLC: R v Peter John Fitzpatrick [2012] ACTSC 107
Case: [2012] ACTSC 107
Decision Date: 13 July 2012

CaseChat Overview and Summary

The defendant, Peter John Fitzpatrick, was charged with multiple offences including serious sexual assault. The Crown sought to introduce evidence of the accused's prior sexual conduct under s 118 of the Evidence Act 1995 (Cth) to establish a propensity to commit the charged offences. The accused objected to the Crown's application, arguing that the evidence was highly prejudicial and its probative value did not substantially outweigh the prejudicial effect. In addition, the accused applied to sever the indictment on the basis that there was an unacceptable risk of prejudice if the charges were heard together in one trial. The trial judge was required to determine whether the Crown's application to adduce tendency evidence should be allowed and whether the indictment should be severed.

The court considered the probative value of the Crown's tendency evidence and its potential prejudicial effect on the accused. The court held that the probative value of the evidence did not substantially outweigh the prejudicial effect, given the highly prejudicial nature of the evidence and the potential to unfairly prejudice the jury against the accused. The court found that the evidence was unlikely to lead to a significant increase in the probability of the accused's guilt, and that the risk of unfair prejudice was too great. The court also considered the accused's application to sever the indictment. The court found that there was an unacceptable risk of prejudice to the accused if the charges were heard together in one trial, as the evidence of prior sexual conduct was highly prejudicial and could unfairly influence the jury's assessment of the accused's guilt on the other charges.

Accordingly, the Crown's application to adduce tendency evidence was refused. The court held that the probative value of the evidence did not substantially outweigh the prejudicial effect on the accused. The court also allowed the accused's application to sever the indictment, finding that there was an unacceptable risk of prejudice if the charges were heard together in one trial. The court ordered that the indictment be severed and that separate trials be held for each set of charges.

Orders