R v PJ
[2009] ACTSC 155
•12 October 2009
R v PJ
[2009] ACTSC 155 (12 October 2009)
EX TEMPORE JUDGMENT
No. SCC 60 of 2008
Judge: Higgins CJ
Supreme Court of the ACT
Date: 12 October 2009
IN THE SUPREME COURT OF THE )
) No. SCC 60 of 2009
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
PJ
ORDER
Judge: Higgins CJ
Date: 12 October 2009
Place: Canberra
THE COURT ORDERS THAT:
The application be dismissed.
In this case there is an application by the accused to sever the indictment dated the 3rd day of April 2008. The indictment charges that:
… between the 24th of September 1975 and the 14th of February 1977 at Canberra in the Australian Capital Territory [PJ] attempted to carnally know [M], a girl under the age of 10 years of age, to wit four or five years of age.
SECOND COUNT
AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] assaulted [M], a girl aged under 16 years of age, to wit, four or five years of age, and at the time of such assault, committed an act of indecency upon [M].
THIRD COUNT
AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] assaulted [M], a girl aged under 16 years of age, to wit, four or five years of age, and at the time of such assault, committed an act of indecency upon [M].
FOURTH COUNT
AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] attempted to carnally know [M], a girl under the age of 10 years of age, to wit aged four or five years of age.
FIFTH COUNT
AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] assaulted [M], a girl aged under 16 years of age, to wit, four or five years of age, and at the time of such assault, committed an act of indecency upon [M].
SIXTH COUNT
AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] assaulted [M], a girl aged under 16 years of age, to wit, four or five years of age, and at the time of such assault, committed an act of indecency upon [M].
The application is made on the grounds that, though each of the counts in the indictment is in relatively similar terms, that is to say, there are two categories of charge, two of which might be described as an indecent assault and one of which is an attempt to carnally know the complainant. The counts result from two series of events.
The two series, that is the first, second and third counts against the fourth, fifth and sixth counts are effectively quite similar, the difference being, as the case statement puts it, is that the first three counts relate to what might be called the first event of this nature and the fourth, fifth and sixth counts to what would be the last of those events.
There is a question which is raised about whether any allegation could be adduced in evidence about any intervening acts of a similar nature and I make no ruling or comment on that point at this stage. I have already made a comment upon it in my previous judgment insofar as it was there raised.
The principles in respect of severance are relatively straightforward, that is to say it is an important question as to whether evidence to be adduced in support of one count or one series of counts in this case, would be cross-admissible in respect of the others. That is an important consideration. If it is, then there is no reason not to maintain the indictment in its joint form.
However, the fact that they may not be cross-admissible does not mean the indictment should therefore be severed, for that depends upon other considerations. One consideration is plainly the desirability of resolving all allegations at the one time, particularly where they relate to the one complainant, as is the case here.
Plainly, albeit the delay is very long, it is nevertheless oppressive for a person to have to give evidence on more than one occasion about the same matter or series of matters, particularly as much in the background and context, insofar as that becomes admissible, will be the same.
The same may be said in relation to the accused. Of course, if there is one jury which delivers a verdict in respect of all counts, then the likelihood is that issues raised as to the credibility of the complainant will be equally applicable by the jury in respect of all counts, whereas if more than one jury were to decide it, they may have a different view about the credibility of the complainant from a previous jury.
For that reason there is some desirability, even from the accused’s perspective, for all the matters to be decided together. The real question is whether there is a risk of unfair prejudice arising from the fact that two separate incidents are alleged. That there must be some is, of course, accepted. The question is whether it is of such a nature as to render it necessary, for a fair trial to be had, that the indictment be severed.
In this case there are a number of matters about which the jury will need to be warned in any event. The first is, that it may be necessary to warn the jury that in assessing whether they are satisfied that the events complained of took place they should look to corroboration. Is there any corroboration in any of the surrounding circumstances or evidence? That corroboration is necessary, irrespective of whether other acts are alleged, be that merely the charged acts or uncharged acts. That requirement derives from the fact that the complainant was a child when she was allegedly subject to this behaviour.
Had the complainant given evidence as a child there would first of all be a question about whether her evidence could be admitted as sworn testimony, on oath or affirmation, or not. If not, then the question of corroboration would immediately arise.
The other matter that must be raised and must be dealt with is the question, that if there is more than one incident alleged, whether it raises a tendency issue, and if so the jury should be warned not to reason by way of tendency reasoning.
I do not suppose that a jury would disregard that warning, and I do not suppose that in this case such a direction would be ineffectual. That is partly because at this point there are two allegations, not a large number of allegations. If other evidence was admitted, then a different question might arise there. However, in any event there has to be a warning to a jury that they must not reason from tendency to accept that an act happened. Nor must they reason, because it is alleged that whatever happened, happened on more than one occasion that it is more likely that it then happened on either of those occasions. The question remains the same.
In those circumstances, it seems to me that any unfair prejudice that might arise in the context of this case, having regard to the warnings that must be given, would not render it necessary to sever the indictment. I do not think there is a danger of unfair prejudice that can not be eliminated by the appropriate direction or directions that must be given.
The application is denied.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 26 November 2009
Counsel for the plaintiff: Mr A Doig
Solicitor for the plaintiff: Director of Public Prosecutions of the ACT
Counsel for the defendant: Mr R Thomas
Solicitor for the defendant: Gordon Naylor & Associates
Date of hearing: 12 October 2009
Date of judgment: 12 October 2009
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