Director of Public Prosecutions v Voigt (Ruling No. 2)
[2016] VCC 1679
•9 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01298
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY VOIGT |
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JUDGE: | Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 November 2016 | |
DATE OF RULING: | 9 November 2016 | |
CASE MAY BE CITED AS: | DPP v Voigt (Ruling No. 2) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1679 | |
REASONS FOR RULING NO.2
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Subject:
Catchwords: Misconduct evidence
Legislation Cited:
Cases Cited:
Ruling: Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Faller | OPP |
| For the Accused | Ms Z. Broughton | Victoria Legal Aid |
HER HONOUR:
1 There are two aspects that are sought to be led as other misconduct evidence, acts which are briefly referred to as the bedroom and bathroom evidence and acts of other violence alleged to have been displayed towards the complainant, by the accused.
2 In respect of the bedroom and bathroom evidence, it is my view that it has relevance but its relevance, really, comes down to a showing a developing sexual interest.
3 The prosecution has specifically said they do not rely on that and as has been discussed, even if it has relevance as sexual interest, it has reduced probative value and could never reach the level of significant probative value as it is from a single source[1] and of a much different nature to the alleged events and it is not even a sexual act of a specific kind.
[1]IMM v The Queen [2016] HCA 14 at [62]
4 There are other aspects that were canvassed in the submissions that reduce its probative value and relevance. As I have just referred to, they are acts or behaviour that are dissimilar to what is alleged to have occurred on the day alleged on the indictment and in that sense, they do not really go to providing background. In my view, they do not provide a basis for there not being a complaint after the alleged events on the indictment, nor do they provide a reason for the accused being able to act with impunity, nor do they provide a reason for or provide background to show that the context for the alleged events on the indictment were not out of the blue, for the reason that I have just said. They can only do so if they are considered to be a developing sexual interest and that is not a permissible purpose[2]. In brief, I propose to rule out any references to the bedroom and bathroom evidence.
[2]IMM v The Queen [2016] HCA 14 ibid
5 Turning to the allegations of violence or other misconduct evidence, again, on further reflection, this seems to be moving towards a tendency or behaviour on the part of the accused to act in a violent way towards the complainant. It is different to the other potential misconduct evidence, however, because there are other witnesses, in some instances, to the alleged violence or immediate complaint about it, which may potentially go to truth of those other events of alleged violence.
6 Not being from a single source, there is the potential for the material to be admitted and used as tendency. However, the prosecution do not rely on that basis for admission but even if they did, in my view, the probative value, both as to context and tendency, is limited because the alleged violence on the other occasions is not associated with alleged sexual acts. There is one act of specific violence alleged in the common assault on the indictment but the rest of the violence on the indictment is associated with the alleged rapes.
7 The violence occurring on other occasions does not really assist in providing context to the sexual violence said to have occurred on the day in question on the indictment. Further it has, of itself, limited value as a reason for there being no immediate complaint; nor for the accused acting with impunity, as there has not been a similar event before; and the fact is that what is said to have occurred, on any view of it, is out of the blue, in the sense of that type of violent sexual activity.
8 The view I have reached is that the alleged events on the indictment provide their own context, in terms of themselves being a reason for there being no immediate complaint. If the 11 year old child had been violently raped when her mother was away from the house for days and was away often, that would be a reason for not complaining because of the fear that would be induced as a result of such a violent series of acts.
9 As I have said, it is a one-off transaction of that combined sexual violent type of that particularly violent nature as alleged and I have decided that whilst there may be some relevance - and there is a question as to that - even if the material is relevant, whether it is the bathroom/bedroom incidents or the violent allegations, the probative value of that other misconduct evidence is reduced for the reasons I have attempted to give. It is therefore outweighed by the danger of impermissible reasoning by way of tendency, and leads to potential unfair prejudice as a result, or generally unfair prejudice in respect of other violent acts not associated with sexual activity. Therefore I propose to exclude the proposed other misconduct evidence under s.137, and I so rule.
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