and Carl Reeves (a pseudonym) v The Queen - [2013] VSCA 311

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0155
CARL REEVES (A PSEUDONYM)	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL ACJ, PRIEST and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 June 2013
DATE OF JUDGMENT:	7 November 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 311

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CRIMINAL LAW — Appeal — Conviction — Sexual penetration of child under 16, indecent act with child under 16 — Two complainants — Whether evidence cross‑admissible — Whether tendency evidence — Whether probative value substantially outweighed any prejudicial effect it might have — Acquittal on two of four counts relating to first complainant — Whether verdicts inconsistent — Appellant cross-examined about whether complainants were lying — Withdrawal and apology by prosecutor — Directions by judge — Jury discharge application refused — Whether miscarriage of justice — Appeal dismissed — Evidence Act 2008 (Vic) ss 97, 101.

EVIDENCE — Tendency evidence — Sexual offences — Evidence of two complainants — Lapse of time between incidents — Whether evidence of one complainant probative of tendency — Whether probative value substantially outweighed any prejudicial effect — R H B v The Queen [2011] VSCA 295; G B F v The Queen [2010] VSCA 135 applied — Evidence Act 2008 (Vic) ss 97, 101.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Croucher SC with Ms C A Boston	Balmer & Associates
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL ACJ:

After a trial in the County Court, the appellant was convicted of two sexual offences against his stepdaughter, Eleanor,[1] and two against his biological daughter, Mary. He was acquitted of two other charges relating to Eleanor. He was sentenced to four years and six months’ imprisonment, with a non-parole period of three years.
[1]Pseudonyms have been used for the two victims and for their mother.

He was granted leave to appeal by a judge of this Court. For reasons which follow, I would dismiss the appeal.

Circumstances of the offending

At the time of the alleged offending against Eleanor, Mr Reeves was married to her mother, Irene. The offences were alleged to have occurred between 1 December 2007 and 31 January 2008, when Eleanor was aged 11.

Eleanor was staying at Mr Reeves’ beach house. She developed a rash on her upper leg. She wanted to apply some cream to the rash. Mr Reeves applied cream to the rash and then, according to Eleanor, he touched her vagina with his fingers (charge 1 — indecent act with child under 16) and put his fingers inside her vagina (charge 2 — sexual penetration of child under 16). He also licked her vagina (charge 3 — indecent act) and put his tongue inside her vagina (charge 4 — sexual penetration).

The defence case was that the alleged conduct did not occur at all. The jury found Mr Reeves guilty on charges 1 and 2, but acquitted him on charges 3 and 4. (It is contended…

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.

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Details

Case: [2013] VSCA 311
Decision Date: 7 November 2013

CaseChat Overview and Summary

Carl Reeves appeals his conviction for sexual penetration and indecent acts with a child under 16, involving two complainants. The matter was heard in the Court of Appeal of the Supreme Court of Victoria. The central issue in the appeal was the admissibility and effect of the evidence from both complainants, particularly whether the evidence from one complainant was probative of the other's case and whether its probative value outweighed any prejudicial effect.

The court considered whether the evidence from the two complainants was cross-admissible under the Evidence Act 2008 (Vic), and if so, whether it constituted tendency evidence. The court further examined if the probative value of this evidence substantially outweighed any prejudicial effect it might have. The appeal also raised questions about the consistency of the jury's verdicts and the impact of the prosecutor's withdrawal and apology on the trial's integrity. The court assessed whether any errors in the trial proceedings amounted to a miscarriage of justice.

The Court of Appeal dismissed the appeal, holding that the trial judge had properly exercised their discretion under the Evidence Act in allowing the cross-admissible evidence. The court found that the probative value of the evidence from both complainants substantially outweighed any prejudicial effect. The inconsistencies in the jury's verdicts did not undermine the overall safety of the conviction, and the prosecutor's actions did not result in a miscarriage of justice. Consequently, the conviction was upheld.

Orders