Legal Research
Cases
CGL v DPP

CGL v DPP

Case [2010] VSCA 26 23 February 2010

Appeal

Admissibility of Evidence

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 8 of 2010

CGL	Applicant
	v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

---

JUDGES:	MAXWELL P, BUCHANAN and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 February 2010
DATE OF ORDERS:	8 February 2010
DATE OF JUDGMENT:	23 February 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 26

---

CRIMINAL LAW – Appeal – Interlocutory appeal – Trial – Severance – Sexual offences – Four complainants – Trial judge ordered separate trial of counts relating to one complainant – Whether separate trials necessary of counts relating to other complainants – Coincidence evidence – Tendency evidence – No sufficient similarity – No cross-admissibility – Appeal allowed – Separate trials ordered – Crimes Act 1958 (Vic), ss 371, 372, Evidence Act 2008 (Vic) ss 94, 97, 98, 101, Criminal Procedure Act 2009 (Vic) ss 295(2), 295(3)(b), 300(2)(b)(i)

EVIDENCE – Admissibility – Criminal proceedings – Coincidence and tendency evidence – Whether sufficient degree of similarity – Whether ‘significant probative value’ – Evidence inadmissible – Evidence Act 2008 (Vic) ss 94, 97, 98, 101.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P F Tehan QC with Mr B J Newton	Paul Vale
For the Respondent	Ms C Barbagallo	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
BUCHANAN JA
BONGIORNO JA:

The applicant (‘CGL’) was presented for trial on 19 counts of sexual offending. The counts were in a single presentment but were based on separate allegations made by four different complainants. We will refer to them respectively as complainant A (count 1), complainant B (counts 2–15), complainant C (counts 16–18) and complainant D (count 19).

Before the trial commenced, CGL applied to the trial judge, Judge Pilgrim, for severance of the counts. It was contended that there should be four separate presentments, one relating to each complainant.

On 3 February 2010, his Honour allowed the severance application in part, and ordered that the counts relating to complainant B be tried separately from the other counts. The application was otherwise refused. On 8 February 2010, this Court heard an application brought by CGL under s 295(2) of the Criminal Procedure Act 2009 (Vic) (‘CPA’) for leave to appeal against that refusal. His Honour had certified pursuant to CPA s 295(3)(b) that his decision was ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.

After hearing argument, the Court announced that leave to appeal would be granted, the appeal allowed and the decision refusing further severance set aside. Pursuant to CPA s 300(2)(b)(i), the Court ordered that there be separate trials of the counts relating, respectively, to complainants A, C and D. We said that we would give reasons subsequently. These are those reasons.

As we stated in the course of the hearing, the fact that the Court was able to deal with the matter so expeditiously reflected the high quality of the written submissions made both to the trial judge and on the application for leave to appeal. It was of…

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 CGL v DPP

Details

AGLC: CGL v DPP [2010] VSCA 26
Case: [2010] VSCA 26
Decision Date: 23 February 2010

CaseChat Overview and Summary

In the matter of CGL v DPP, the appellant, CGL, was appealing against the decision of the trial judge to order separate trials for different counts of sexual offences against various complainants. The trial judge had ordered separate trials for counts relating to one complainant, but CGL argued that separate trials should not be ordered for counts relating to other complainants. The appeal was heard in the Victorian Court of Appeal. The central issue in the appeal was whether separate trials were necessary for counts relating to the other complainants due to the coincidence and tendency evidence that would be presented. The court had to determine whether the evidence had a sufficient degree of similarity and whether it had significant probative value.

The court held that the evidence did not have a sufficient degree of similarity and did not have significant probative value. The court found that the evidence did not meet the requirements for admissibility under sections 94, 97, 98, and 101 of the Evidence Act 2008 (Vic). The court also noted that the evidence did not meet the requirements for cross-admissibility under sections 371 and 372 of the Crimes Act 1958 (Vic). Therefore, the court held that separate trials were necessary for counts relating to the other complainants.

The court allowed the appeal and ordered separate trials for counts relating to the other complainants. The court noted that the trial judge had the discretion to order separate trials under sections 295(2) and 300(2)(b)(i) of the Criminal Procedure Act 2009 (Vic). The court held that the trial judge had exercised this discretion appropriately in ordering separate trials for counts relating to one complainant, but had not exercised it appropriately in relation to counts relating to the other complainants. The court did not make any further orders.

Orders