B A v The Queen - [2012] VSCA 285

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0120
BA	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BUCHANAN and OBSORN JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	31 July 2012
DATE OF JUDGMENT:	30 November 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 285
JUDGMENT APPEALED FROM:	Unreported County Court of Victoria, Judge Gucciardo, 25 May 2011

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CRIMINAL LAW – Incest – Verdict not unsafe or unsatisfactory despite uncertainty emerging in the cross-examination of the complainant – Evidence of the reputation for veracity of the complainant – Part 3.7 of the Evidence Act 2009 (Vic) ousted the common law – Letter written by offender not treated as a confession – Trial judge gave appropriate directions as to the letter.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Tait Lawyers (Ms R Greensill)
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions (Ms S Aridas)

MAXWELL P:

I agree with Buchanan JA.

BUCHANAN JA:

The appellant has appealed against his conviction on four counts of incest and one count of an indecent act with or in the presence of a child under the age of 16 years.

The principal Crown witness was the complainant, the daughter of a woman with whom the appellant lived in a de facto relationship. The offences were alleged to have occurred when the complainant was aged between seven and 12 years.

The complainant gave evidence by means of a VARE tape, when the complainant was aged 13 years, and at a special hearing when she was a year older.

The complainant said that the offending began when she was seven or eight years’ old. She described an incident where she was sitting in the lounge room. She said:

I think I was sitting there and my foot touched his leg or something and he got an erection, that’s what he told my mum, and then it started from then I think, but I wasn’t sure.

The complainant also said that the appellant ‘pulled me towards him but I struggled … and I pulled myself away, and then mum and [the complainant’s sister] came in to the room and it stopped.’ The complainant’s mother said that when she entered the room, the appellant ‘was sitting on a couch and [the complainant] was on his knee … when I came round and they jumped up … ‘ (Count 1, indecent act.)

The complainant said that a couple of days after the first incident, the appellant had sexual intercourse with her on her mother’s mattress in the lounge room. The complainant’s sister was asleep and her mother was shopping. The complainant said that it was 8 or 9 o’clock on a weekend night and the appellant pulled her towards him. She said that she was wearing a night-dress. He took her

underwear off and put his penis in her vagina. She said that it did not last long because her sister woke up (count 2, incest).

The complainant…

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 B A v The Queen

Details

AGLC: B A v The Queen [2012] VSCA 285
Case: [2012] VSCA 285
Decision Date: 30 November 2012

CaseChat Overview and Summary

The matter before the court involved a criminal appeal by the appellant, BA, against a conviction for incest. The appeal was based on the assertion that the verdict was not safe or satisfactory. The case was heard in the Supreme Court of Victoria. The appeal hinged on the sufficiency of the evidence presented, particularly in light of uncertainties that arose during the cross-examination of the complainant. The appellant argued that the inconsistencies in the complainant's testimony undermined the reliability of her evidence, thus making the verdict unsafe.

The legal issues before the court were whether the verdict was indeed unsafe or unsatisfactory, and whether the trial judge adequately addressed the concerns about the complainant's credibility and the probative value of her testimony. Additionally, the court had to determine the admissibility of evidence relating to the complainant's reputation for veracity and the impact of Part 3.7 of the Evidence Act 2009 (Vic) on common law principles. The court also examined whether a letter written by the appellant should be treated as a confession and if the trial judge appropriately directed the jury regarding this letter.

The court found that despite the uncertainties and inconsistencies in the complainant's testimony, the jury was entitled to consider all the evidence and form a view on the reliability of the complainant's account. The court concluded that the evidence, when considered as a whole, was sufficient to support the verdict. Regarding the complainant's reputation for veracity, the court held that Part 3.7 of the Evidence Act 2009 (Vic) had effectively ousted the common law in this area, and therefore, the evidence on this matter was inadmissible. The court also determined that the letter written by the appellant was not a confession and that the trial judge had given appropriate directions to the jury about the letter, ensuring it was considered in the proper context. The appeal was ultimately dismissed.

Orders