Bryan Stark v The Queen - [2013] VSCA 34

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0284

BRYAN STARK	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, REDLICH JA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 September 2012
DATE OF JUDGMENT	1 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 34

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CRIMINAL LAW – Appeal – Conviction – Incest, sexual penetration of child under 16, threats to kill – Evidence – Admissibility – Prior representations – Complaint – Evidence of one complaint relied on to prove asserted fact – Evidence of other complaints relied on only to support complainant’s credibility – Whether evidence ‘sufficiently probative’ – Alleged lie by appellant when giving evidence – Whether open to be viewed as such – No error – Appeal dismissed – Criminal Procedure Act 2009 (Vic) s 377, Evidence Act 1958 (Vic) s 41D, Evidence Act 2008 (Vic) s 66A.

EVIDENCE – Admissibility – Prior representations – Whether admissible to prove truth of asserted fact – Criminal proceeding involving sexual offences – Complainant under 18 – Whether admissibility governed by Evidence Act 2008 (Vic) s 66A or by Criminal Procedure Act 2009 (Vic) s 377 – Latter provision extends scope of former – Latter provision applicable – Whether evidence ‘sufficiently probative’ – No error in admitting evidence.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G Hughan	Robert Stary Lawyers
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

Introduction

After a trial before judge and jury in the County Court, the appellant, Bryan Stark,[1] was convicted of a number of sexual and other offences and was sentenced as set out in the following table:
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

Charge on Indictment Offence Maximum Sentence Cumulation

1 Incest[2] 25 y 6 y Base

2 Threat to kill[3] 10 y 3 y 3 m

3 Threat to kill 10 y 3 y 3 m

4 Sexual penetration of a child under the age of 16[4] 15 y 4 y 6 m

5 Indecent act with child under the age of 16[5] 10 y 2 y -

6 Sexual penetration of a child under the age of 16 15 y 6 y 12 m

7 Threat to kill 10 y 3 y 3 m

8 Threat to kill 10 y 3 y 3 m

Total Effective Sentence: 8 y 6 m

Non-Parole Period: 5 y 6 m
[2]Crimes Act 1958 (Vic) s 44(2).
[3]Ibid s 20.
[4]Ibid s 45(1).
[5]Ibid s 47.

Mr Stark now appeals, by leave, against these convictions. For reasons which follow, I would dismiss the appeal.

The first ground raises a point of general importance concerning the admissibility, in a trial of sexual assault charges, of evidence of a complaint made by a child victim. Specifically, it raises the question of the relationship…

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 Bryan Stark v The Queen

Details

AGLC: Bryan Stark v The Queen [2013] VSCA 34
Case: [2013] VSCA 34
Decision Date: 1 March 2013

CaseChat Overview and Summary

Bryan Stark has appealed against his conviction by the County Court for incest, sexual penetration of a child under 16, and threats to kill. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. The crux of the appeal revolves around the admissibility of certain evidence, specifically prior complaints made by the complainant, and an alleged lie by the appellant during his testimony. The appellant contended that the trial judge erred in admitting evidence of other complaints made by the complainant, which were not the subject of the charges, and in allowing the prosecution to cross-examine the appellant about an alleged lie.

The court was required to determine whether the evidence of other complaints was admissible under the Evidence Act 2008 (Vic) section 66A, which generally prohibits the use of prior representations to prove the truth of the facts asserted, or whether it was admissible under the Criminal Procedure Act 2009 (Vic) section 377, which provides an exception for certain sexual offences. The court also had to consider whether the evidence of the other complaints was sufficiently probative to outweigh any prejudicial effect. Additionally, the court needed to examine whether the appellant’s evidence about an alleged lie could be viewed as such by the jury.

The Court of Appeal found no error in the trial judge's decisions. The court held that the Criminal Procedure Act 2009 (Vic) section 377 was applicable and extended the scope of the Evidence Act 2008 (Vic) section 66A, allowing for the admission of evidence of other complaints in this case. The court concluded that the evidence of the other complaints was sufficiently probative and did not unfairly prejudice the appellant. The court also found that the evidence of the alleged lie by the appellant was open to be viewed as such by the jury. Therefore, the appeal was dismissed.

In summary, the Court of Appeal upheld the conviction, affirming that the trial judge had correctly admitted the evidence of other complaints and the cross-examination about the alleged lie. The appellant’s appeal was unsuccessful, and his conviction stands as originally determined by the County Court.

Orders