The Queen v PJ - [2012] ACTSC 185

THE QUEEN v PJ
[2012] ACTSC 185 (20 November 2012)

CRIMINAL LAW – trial procedure – admissibility of evidence – application for leave to admit evidence to re-establish credibility – Evidence Act 2011 (ACT) s 108(2)(b) – prior consistent statement – direct challenge in cross-examination as to fabrication – indirect challenge in cross-examination as to recent invention – R v MDB [2005] NSWCCA 354 –relevant factors justifying leave – Evidence Act s 192 – where trial marginally lengthened – where no adjournment necessary – where directions may be granted – where no unfairness to the accused – where case of a type in which corroborative evidence of the complainant is rarely available – leave granted.

Evidence Act 2011 (ACT), ss 66, 108, 192,

DBG (2002) 133 A Crim R 227
Frankcombe v Holloway [1957] VR 139
Graham v The Queen (1998) 195 CLR 606
R v Ali [2000] NSWCCA 177
R v Fraser (1995) 65 SASR 260

R v MDB [2005] NSWCCA 354

W (1999) 109 A Crim R 51
Woodward v Shea [1952] VLR 313

EX TEMPORE JUDGMENT

No. SCC 254 of 2010

Judge: Refshauge J
Supreme Court of the ACT

Date: 20 November 2012

IN THE SUPREME COURT OF THE       )
  )          No. SCC 254 of 2010
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
v
PJ

ORDER

Judge:  Refshauge J
Date:  20 November 2012
Place:  Canberra

THE COURT ORDERS THAT:

Leave is granted, pursuant to Evidence Act 2011 (ACT) s 108(2), for the Crown to adduce the witness’ diary entries as evidence in the proceedings.

The accused has been charged with three counts of assault occasioning actual bodily harm, indecent assault and incest (or, in the alternative, attempted incest). The complainant is the accused’s daughter.

The trial before a jury has commenced and evidence has been given by a witness, the complainant’s sister, of an incident in which the accused made sexual contact with the witness. That evidence was admitted as tendency evidence, evidence that was capable of showing a tendency for the accused to have a sexual interest in his daughters.

That incident was challenged in cross examination by Mr S Gill, who appears for the accused. The relevant portion of the cross examination is as follows:

What I want to suggest you, [MS], is that you are lying about his incident. Are you lying about this incident, [MS]?---I believe I am not lying about this incident.

You believe you are not lying about this incident. Is that your
evidence?---It was a moment where, again, like with everything you just think was that him doing it on purpose or was it not? As [the accused] put his arm round my waist he just happened to put it across my chest.

[MS], in fact, I'm going to suggest to you that you are lying about the whole incident, breasts, penis, the lot. You’re lying about the whole incident, [MS]?
---I'm not lying about any of this. Why would I?

In fact, [MS], I'm going to suggest to you that…

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 The Queen v PJ

Details

AGLC: The Queen v PJ [2012] ACTSC 185
Case: [2012] ACTSC 185
Decision Date: 20 November 2012

CaseChat Overview and Summary

The defendant, PJ, was charged with various criminal offences, and the case was heard in a relevant court. The primary issue before the court was whether the Crown should be granted leave to introduce evidence in the form of diary entries of a witness to re-establish their credibility. This application was made under section 108(2)(b) of the Evidence Act 2011 (ACT). The defendant had cross-examined the witness, challenging their credibility by suggesting that their account was fabricated or had been recently invented. The court had to determine if the leave should be granted considering the potential impact on the trial duration, the fairness to the defendant, and the nature of the case.

The court considered various factors outlined in the Evidence Act, particularly section 192, which provides the criteria for granting leave. It was noted that the trial would be marginally lengthened, but no adjournment was necessary. The court also considered the possibility of granting directions to manage the introduction of the evidence. Importantly, the court found that allowing the evidence would not result in unfairness to the defendant. Additionally, the court recognised that cases involving complainants often lack corroborative evidence, making the credibility of the witness crucial. Based on these considerations, the court concluded that the relevant factors justified granting the leave.

The court granted leave for the Crown to present the witness’ diary entries as evidence in the proceedings. This decision allowed the Crown to bolster the credibility of the witness, which was crucial given the nature of the charges and the limited availability of corroborative evidence. The court’s decision was balanced, ensuring procedural fairness while addressing the need to properly assess the witness’ credibility in the context of the case.

Orders

Orders of the court

Leave is granted, pursuant to Evidence Act 2011 (ACT) s 108(2), for the Crown to adduce the witness’ diary entries as evidence in the proceedings.

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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