SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v TK (No 2) |
Citation: | [2015] ACTSC 87 |
Hearing Date(s): | 13 April 2015 |
DecisionDate: | 14 April 2015 |
Before: | Refshauge J |
Decision: | 1. The application for the vacation of the trial date is dismissed. 2. The evidence of Dr Bragg is not be admitted in the trial. 3. Statements were made of ongoing sexual touching of the complainant by TK in her statement. These are, it is accepted, admissible, and I will admit them. 4. The statement made by the complainant that TK touched her on the bottom "all the time" when the family lived in Wanniassa is inadmissible under s 137 of the Evidence Act 2011. 5. Evidence of the complainant being uncomfortable when TK tried to cuddle her, would pull away from him and that the complainant "wanted to stay [at her aunt’s house] a lot when she was 10 to 13" cannot be led in-chief from the complainant, but may be led in re‑examination, or in other evidence, if made relevant by any such cross‑examination. 6. Evidence of strict discipline of the complainant by TK, including corporal punishment and an incident of forcing her to eat food from the floor is not admissible in the complainant’s evidence‑in‑chief, but may become admissible in re‑examination or in other evidence, if cross‑examination of the complainant raises issues that makes them relevant. This matter can be re-agitated, if necessary, during the course of the trial. 7. Evidence from the complainant’s mother of the relationship between the complainant and the Accused is context evidence of a usual kind and is admissible. 8. Evidence from the complainant’s mother of her relationship with the Accused, including that they fought a lot at home, is not evidence of the relationship between the complainant and the Accused and therefore is not admissible unless cross‑examination makes it relevant. 9. The first complaint, made to the complainant’s grandmother, is admissible as complaint evidence. 10. The second complaint is admissible as complaint evidence. 11. The third complaint is not admissible. Should an issue arise during the trial that suggests that the complainant’s credibility is damaged by the failure to complain to her mother and that no one else told her mother, this ruling may be revisited. 12. BM may give her evidence by video link but not by audio link only. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – TRIAL – Act of indecency on a person under the age of 10 years – Act of indecency on a person under the age of 16 years EVIDENCE – Admissibility and relevancy – Expert evidence – Late service of an expert report – Risk of a miscarriage of justice – Relationship evidence – Evidence may become relevant following cross-examination – Complaint evidence – Exception to the hearsay rule – ‘fresh in the memory’ – Evidence by audio-visual link |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 32, 60, 63, 66, 71, 136, 137 |
Cases Cited: |
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- AGLC
- R v TK (No 2) [2015] ACTSC 87
- Case
- [2015] ACTSC 87
- Decision Date
CaseChat Overview and Summary
The court needed to address several legal issues, including whether an expert report served late could be admitted into evidence and whether there was a risk of a miscarriage of justice as a result. Additionally, the court had to decide on the admissibility of certain relationship evidence and the timing of the complaints made by the complainant. The court also needed to determine if certain statements made by the complainant could be admitted under exceptions to the hearsay rule, specifically whether they were 'fresh in the memory'.
The court dismissed the application for the vacation of the trial date, finding that there was no significant prejudice to the accused. The expert evidence was excluded due to the late service of the report, as the court found it posed a risk of a miscarriage of justice. The court allowed some statements made by the complainant regarding ongoing sexual touching to be admitted, while others were ruled inadmissible or only admissible under certain conditions. The court also made rulings on the admissibility of the complainant’s mother’s evidence and the conditions under which certain relationship evidence could be introduced. The court ruled that the first two complaints were admissible as complaint evidence, but the third was not, subject to reconsideration if the issue of the complainant’s credibility arose during the trial. Lastly, the court ruled that the complainant could give evidence by video link but not by audio link alone.
The court made specific orders regarding the admissibility of evidence, including the exclusion of certain evidence in the complainant’s evidence-in-chief but allowing for its potential admissibility in re-examination if relevant issues were raised by cross-examination. The court also ruled that the complainant’s mother’s evidence of her relationship with the accused was not admissible unless made relevant by cross-examination. The court permitted the complainant to give evidence by video link, but not by audio link only.
Orders
Orders of the court
1. The application for the vacation of the trial date is dismissed.
2. The evidence of Dr Bragg is not be admitted in the trial.
3. Statements were made of ongoing sexual touching of the complainant by TK in her statement. These are, it is accepted, admissible, and I will admit them.
4. The statement made by the complainant that TK touched her on the bottom "all the time" when the family lived in Wanniassa is inadmissible under s 137 of the Evidence Act 2011.
5. Evidence of the complainant being uncomfortable when TK tried to cuddle her, would pull away from him and that the complainant "wanted to stay [at her aunt’s house] a lot when she was 10 to 13" cannot be led in-chief from the complainant, but may be led in re‑examination, or in other evidence, if made relevant by any such cross‑examination.
6. Evidence of strict discipline of the complainant by TK, including corporal punishment and an incident of forcing her to eat food from the floor is not admissible in the complainant’s evidence‑in‑chief, but may become admissible in re‑examination or in other evidence, if cross‑examination of the complainant raises issues that makes them relevant. This matter can be re-agitated, if necessary, during the course of the trial.
7. Evidence from the complainant’s mother of the relationship between the complainant and the Accused is context evidence of a usual kind and is admissible.
8. Evidence from the complainant’s mother of her relationship with the Accused, including that they fought a lot at home, is not evidence of the relationship between the complainant and the Accused and therefore is not admissible unless cross‑examination makes it relevant.
9. The first complaint, made to the complainant’s grandmother, is admissible as complaint evidence.
10. The second complaint is admissible as complaint evidence.
11. The third complaint is not admissible. Should an issue arise during the trial that suggests that the complainant’s credibility is damaged by the failure to complain to her mother and that no one else told her mother, this ruling may be revisited.
12. BM may give her evidence by video link but not by audio link only.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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