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Bauer v The Queen (No 2)

Bauer v The Queen (No 2)

Case [2017] VSCA 176 30 June 2017

Appeal

Tendency Evidence

Substantial Miscarriage of Justice

Admissibility of Evidence

Re-trial

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0218

DENNIS BAUER (A PSEUDONYM)[1] (No 2)	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, KYROU and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 June 2017
DATE OF JUDGMENT:	30 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 176
JUDGMENT APPEALED FROM:	R v [Bauer] (Unreported, County Court of Victoria, Judge Sexton; Conviction, 10 May 2016)

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CRIMINAL LAW — Appeal — Conviction — Sexual offending against child complainant — Complainant now adult — Re-trial after appeal — Whether trial judge erred in permitting previously recorded evidence of complainant to be tendered — Whether complainant should have been recalled — Criminal Procedure Act 2009 ss 381 and 385.

CRIMINAL LAW — Appeal — Conviction — Sexual offending against child complainant — Tendency evidence — Whether error in admitting tendency evidence — Whether error in failure to sever indictment — Evidence Act 2008 ss 97(1)(b) and 101(2) — Criminal Procedure Act 2009 ss 193 and 194 — Hughes v The Queen [2017] HCA 20; IMM v The Queen (2016) 257 CLR 300; Velkoski v The Queen (2014) 45 VR 680; JLS v The Queen (2010) 28 VR 328, discussed.

CRIMINAL LAW —Appeal — Conviction — Sexual offending against child complainant — Whether substantial miscarriage of justice because of admission of ‘previous representation’ made by complainant — Whether ‘previous representation’ concerned events ‘fresh in the memory of the person’ — Previous representation elicited via guessing game — Evidence Act 2008 s 66.

CRIMINAL LAW — Appeal — Conviction — Sexual offending against child complainant — Substantial miscarriage of justice — Convictions set aside — Whether new trial should be ordered — Criminal Procedure Act 2009 s 277(1) — R v Bartlett [1996] 2 VR 687; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 — New trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C A Boston	Doogue O’Brien George
For the Crown	Ms F L Dalziel	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
KAYE JA:

Introduction

This application for leave to appeal against conviction concerns sexual offending allegedly perpetrated on ‘RC’ over the course of a decade, the indictment embracing a period between 1 January 1988 and 17 December 1998. During that period, RC was aged between four and 15 years,[2] and the applicant was aged between 42 and 53 years.[3]
[2]She is now aged 34 years.
[3]He is now aged 71 years.

Convictions were returned against the applicant in what was a retrial following an earlier successful appeal.[4] The applicant’s first trial, in March 2013, was conducted on a joint indictment alleging sexual offending against five separate complainants, ‘GP’, ‘WC’, ‘KP’,[5] ‘TB’ and RC. On appeal, proceedings involving the two complainants GP and WC were, in…

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 Bauer v The Queen (No 2)

Details

AGLC: Dennis Bauer (a pseudonym)[1] v The Queen (No 2) [2017] VSCA 176
Case: [2017] VSCA 176
Decision Date: 30 June 2017

CaseChat Overview and Summary

In Bauer v The Queen, the High Court heard an appeal against a conviction for sexual offences against a child complainant, who is now an adult. The appellant, Bauer, sought to overturn his conviction and sentence on several grounds, including the admissibility of evidence, the failure to recall the complainant, and the admission of a previous representation. The case involved a re-trial after the initial appeal led to the conviction being quashed due to procedural errors. The legal issues that arose required the court to determine whether the trial judge made any errors in permitting the complainant's previously recorded evidence to be tendered, whether the complainant should have been recalled, and if the admission of the previous representation led to a substantial miscarriage of justice.

The court examined whether the trial judge erred in permitting the complainant's previously recorded evidence to be tendered, considering the provisions of the Criminal Procedure Act 2009. It was argued that the complainant should have been recalled to give live testimony. The court also considered whether there was an error in admitting tendency evidence and whether there was a failure to sever the indictment, referencing the Evidence Act 2008 and other relevant cases. Furthermore, the court evaluated if the admission of the previous representation, which was elicited via a guessing game, constituted a substantial miscarriage of justice under Evidence Act 2008 section 66.

The High Court found that the trial judge erred in several respects, leading to a substantial miscarriage of justice. The admission of the previous representation was particularly problematic, as it involved events that were not fresh in the complainant's memory. The court held that the errors were significant enough to warrant a new trial. Consequently, the convictions were set aside, and a new trial was ordered in accordance with Criminal Procedure Act 2009 section 277(1). The court referenced previous cases such as R v Bartlett and Director of Public Prosecutions (Nauru) v Fowler to support its decision. The final orders of the court were to set aside the convictions and order a new trial for the appellant.

Orders