http://www.austlii.edu.au/au/cases/act/ACTSC/2010/31.html
CRIMINAL LAW – trial by judge alone – offence of act of indecency upon person above the age of 10 but under the age of 16 – accused found guilty.
CRIMINAL LAW – trial by judge alone – offence of act of indecency without consent – reasonable doubt whether offence committed within dates specified in indictment – accused found not guilty.
CRIMINAL LAW – two charges depending on uncorroborated evidence of complainant – finding that elements of first charge made out beyond reasonable doubt – finding that second charge cannot be made out as to dates specified in indictment – application by counsel to review finding on first count having regard to finding on second count – finding on second count relates to reliability of evidence about dates, not complainant’s veracity or honesty – no requirement to find reasonable doubt about first charge as a result of doubt about second charge.
EVIDENCE – requirement that complainant in sexual offence proceeding not be identified – accused’s granddaughter a complainant in another sexual offence proceeding – granddaughter’s complaint relevant to defence in this proceeding – difficulty of dealing with defence arguments properly without indirectly identifying granddaughter – names of all family members, including accused, suppressed – Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 40.
EVIDENCE – complainant’s evidence of earlier complaints to mother admitted – evidence remained admissible despite exclusion of mother’s evidence of complaint – Evidence Act 1995 (Cth), s 108(3).
EVIDENCE – prior consistent statements by complainant – defence case included claims that complainant’s evidence had been fabricated or reconstructed or was the result of suggestion – evidence of earlier complaints by complainant admitted – Evidence Act 1995 (Cth), s 108(3).
EVIDENCE – operation of Evidence Act 1995 (Cth) in judge-alone trials in ACT – requirement that judge take into account a warning that a Territory law would require to be given to a jury – whether “warning” includes directions or comments – effect of Evidence Act provisions expressed to apply where there is a jury – meaning of “Territory law” – Evidence Act not a “Territory law” under Legislation Act 2001 (ACT) – provisions of Evidence Act expressed to apply in jury trials may not be applicable to judge-alone trials in ACT.
EVIDENCE – possible unreliability of evidence of complainant and other prosecution witnesses – complainant’s cousin’s role in instigation of complaints – whether complaints reflected “false” or “recovered” memory – complainant’s faulty recall of incidental details – implausibility of allegation about second incident – “improvement” in evidence of prosecution witnesses.
EVIDENCE – possible unreliability of complainant’s evidence – whether complainant or another prosecution witness had a motive to lie – whether another witness’s motive to lie could affect reliability of complainant’s evidence – whether complainant’s inherently central role in the possible conviction of the accused renders her evidence unreliable.
EVIDENCE – complainant encouraged to make formal complaints by cousin – no necessary implications for truth of complaints – complainant’s evidence not unreliable by reason only of complaints having been encouraged.
EVIDENCE – allegations of “false” or “recovered” memories – no evidence that complainant’s memories had ever been lost – no evidence suggesting creating or implanting of memories – mistakes about matters of detail are not the same as, or evidence of, “false” or “recovered” memory.
EVIDENCE – “improvement” in evidence between committal and trial does not render evidence necessarily unreliable – implausibility of matters in evidence not a reason for finding evidence unreliable – allegation of acts of indecency in presence of others not necessarily implausible.
EVIDENCE – character evidence – weight to be given to character evidence from witnesses who decline to hear details of allegations.
EVIDENCE – evidence taken by video link from Victoria on voir dire – direction under Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 20 only available in respect of a participating State – participating States are those in which provisions are in force in terms substantially corresponding to Part 3 of that Act – Victorian legislation is not corresponding legislation – Victoria is not a participating State – no order available under s 20 – Practice Direction not a sufficient basis for admitting evidence in criminal trial, even with consent of other party – evidence excluded.
EVIDENCE – delay in making complaints – Longman warning – Evidence Act 1995 (Cth), s 165B – requirement under s 165B for defence to identify significant forensic disadvantage claimed to result from delay – significance of delay in absence of sworn denial by accused – significance of delay having regard to extensive cross-examination of complainant about details of allegations.
