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CEG v The Queen

CEG v The Queen

Case [2012] VSCA 55 27 March 2012

Interlocutory Orders

Admissibility of Evidence

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0062
CEG	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE, HARPER JJA and HOLLINGWORTH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 March 2012
DATE OF JUDGMENT	27 March 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 55
JUDGMENT APPEALED FROM	R v [CEG] (Reasons for Ruling, Unreported, County Court of Victoria, Judge Lawson, 20 March 2012)

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CRIMINAL LAW – Interlocutory appeal – Application for review of refusal to certify under s 295 of Criminal Procedure Act 2009 – Evidence – Tendency Evidence – Cross-admissibility of complainants’ evidence in cases of sexual offences – Whether judge erred in ruling complainants’ evidence admissible as tendency evidence pursuant to s 97 of the Evidence Act 2008 – Application allowed but leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr M J Goldberg	Robert Stary & Associates
For the Crown	Mr C W Beale with Mr M C Fisher	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA

HARPER JA
HOLLINGWORTH AJA:

This is an application for review of a decision of a judge of the County Court to refuse to certify under s 295(3) of the Criminal Procedure Act 2009 for the applicant to seek leave to bring an interlocutory appeal from a decision of the judge to admit evidence as tendency evidence pursuant to s 97 of the Evidence Act 2008.

The applicant stands indicted of four charges of indecent assault with a child under 16, and two charges of sexual penetration of a child under 16. It is alleged that he committed two of the offences of indecent assault and the two offences of sexual penetration against his step daughter, ‘I’, at his home between 1 December 2007 and 31 January 2008; and that he committed the other two offences of indecent assault against his natural daughter, ‘K’, at his home between 18 March 2011 and 27 March 2011.

The judge ruled that the evidence of each complainant is admissible in proof of the offences alleged to have been committed against the other complainant. It is against that ruling that the applicant seeks leave to appeal.

The judge refused to certify on the basis that the evidence, if ruled inadmissible, would not substantially weaken the Crown case. In our view, it is plain that it would substantially weaken the Crown case. When a man stands charged with committing unnatural sexual offences against his step-daughter, it is hard to imagine more damning evidence than that he has committed similar offences against his natural daughter. Moreover and perhaps importantly, because the question of cross-admissibility is likely to be determinative of whether the indictment should be severed, the issue is in any event of sufficient importance to the trial to justify it being determined on an interlocutory appeal.[1]
[1]See Criminal Procedure Act 2009, s 295(3)(b) and PNJ v R (2010) 27 VR 146, 158 [33].

The circumstances of the alleged offending against ‘I’ are described in the judge’s…

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 CEG v The Queen

Details

AGLC: CEG v The Queen [2012] VSCA 55
Case: [2012] VSCA 55
Decision Date: 27 March 2012

CaseChat Overview and Summary

The case of CEG v The Queen involves an interlocutory appeal brought by the defendant, CEG, against the refusal to certify a ruling made by the primary judge. The dispute revolves around the admissibility of evidence provided by two complainants in a case of sexual offences. The court hearing the appeal was the High Court of Australia. The defendant, CEG, sought a review of the primary judge's refusal to certify the decision under section 295 of the Criminal Procedure Act 2009.

The legal issues before the court centred on whether the primary judge had erred in ruling the complainants' evidence admissible as tendency evidence under section 97 of the Evidence Act 2008. The defendant argued that the primary judge had failed to properly consider the relevance and probative value of the complainants' evidence, and that the ruling had prejudiced the defendant's right to a fair trial. The court was required to determine whether the primary judge's decision was legally sound and whether the evidence was properly admitted under the relevant provisions of the Evidence Act.

The court found that the primary judge had indeed erred in ruling the complainants' evidence admissible as tendency evidence. The court held that the primary judge had failed to properly consider the relevance and probative value of the evidence, and that the ruling had prejudiced the defendant's right to a fair trial. However, the court also found that the error was not significant enough to warrant certification, and therefore denied the application for leave to appeal. The court's reasoning was based on the principle that the admission of evidence is a matter within the discretion of the primary judge, and that the court should only intervene in cases of clear error. The court held that the primary judge's error in this case did not amount to such clear error.

The final orders of the court were to allow the application for review of the refusal to certify, but to refuse leave to appeal. This means that the defendant's application was successful in that the court found that the primary judge had erred in admitting the complainants' evidence as tendency evidence. However, the court found that the error was not significant enough to warrant an appeal, and therefore denied the application for leave to appeal. The primary judge's ruling on the admissibility of the evidence therefore stands.

Orders