The Queen v PW (No 3) - [2015] ACTSC 93

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v PW (No 3)
Citation:	[2015] ACTSC 93
Hearing Date(s):	7-13 April 2015
DecisionDate:	13 April 2015
Before:	Refshauge J
Decision:	The Court declines to give a warning to the jury under s 165 of the Evidence Act 2011 (ACT) but will give a direction under s 165B of that Act.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Practice and Procedure – Trial – Act of indecency on a person under the age of 10 years – Warning to the jury – Matter within the ordinary experience of the jury – Murray direction
Legislation Cited:	Evidence Act 2011 (ACT), ss 165, 165B
Cases Cited:	Bromley v The Queen (1986) 161 CLR 315 Fleming v The Queen (1998) 197 CLR 250 RELC v The Queen (2006) 167 A Crim R 484 Robinson v The Queen (1999) 197 CLR 162 R v Beattie (1996) 40 NSWLR 155 R v Murray (1987) 11 NSWLR 12 R v Stewart (2001) 52 NSWLR 301 R v Taranto [1999] NSWCCA 396
Texts Cited:	S J Odgers’ Uniform Evidence Law (11^th ed, Thompson Reuters; Sydney, 2014)
Parties:	The Queen (Crown) PW (Accused)
Representation:	Counsel Mr M Fernandez (Crown) Mr J Pappas (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich and Associates (Accused)
File Number(s):	SCC 208 of 2013

Refshauge J:

The accused, PW, has been on trial before me and a jury on two counts of committing an act of indecency on the complainant, a girl under the age of 10 years, to which charges PW had, of course, pleaded not guilty. The trial commenced on 7 April 2015 and the evidence was completed on 10 April 2015. So as to have addresses to the jury on the same day and not separated by the weekend, I adjourned slightly early on 10 April 2015, with addresses to commence as soon as the Court reconvened on 13 April 2015.

As is my custom, I invited counsel to submit whether there were any specific directions that they wished me to include in my summing up to the jury. Mr J Pappas, who appeared for PW, requested that I give the jury a warning under s 165 of the Evidence Act 2011 (ACT). Mr M Fernandez, Crown Prosecutor, opposed the giving of such a warning.

Section 165 of the Evidence Act is in the following terms:

165 Unreliable evidence
(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a) evidence in relation to which part 3.2 (Hearsay) or part 3.4 (Admissions) applies;
(b) identification evidence;
(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;
(d) evidence given in a criminal proceeding by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;
(e) evidence given in a criminal proceeding by a witness who…

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 PW (No 3)

Details

AGLC: The Queen v PW (No 3) [2015] ACTSC 93
Case: [2015] ACTSC 93
Decision Date: 13 April 2015

CaseChat Overview and Summary

The Queen filed a criminal case against PW, charging him with the act of indecency on a person under the age of ten. The case was heard in the Supreme Court of the Australian Capital Territory. The primary dispute was whether the trial judge should have provided a warning to the jury regarding the nature of the evidence and the particular caution needed in assessing it. The defence argued for a warning under section 165 of the Evidence Act 2011 (ACT), contending that the evidence presented was of such a sensitive nature that it required special caution from the jury. The Crown opposed this, suggesting that such a warning was unnecessary and potentially prejudicial.

The legal issues before the court were whether the trial judge should have issued a warning to the jury under section 165 of the Evidence Act and, if not, whether an alternative direction under section 165B of that Act was appropriate. The court considered the Murray direction, which provides guidance to the jury when dealing with sensitive evidence without explicitly warning them about the potential for prejudice. The Crown's argument focused on the principle that the matter was within the ordinary experience of the jury, and thus, a warning was not required. Instead, the court should provide a direction that ensures the jury appropriately considers the evidence.

The court held that the evidence in question was not so exceptional that a warning was necessary. It found that the matter was within the ordinary experience of the jury, and thus, a Murray direction was more suitable. The court declined to give a warning under section 165 of the Evidence Act, as it believed this would have unduly emphasised the sensitive nature of the evidence. Instead, the court opted to give a direction under section 165B of the Act, ensuring the jury was adequately guided without the potential prejudice of a formal warning. The court's decision was based on the need to balance the sensitivity of the evidence with the jury's ability to make an impartial decision.

Orders

Orders of the court

The Court declines to give a warning to the jury under s 165 of the Evidence Act 2011 (ACT) but will give a direction under s 165B of that Act.

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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