DPP and Furness Ruling No. 2 (CR-01197)

[2015] VCC 1650

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-15-01197

DPP

v

Duane Furness

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JUDGE:	CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2015
DATE OF RULING:	16 November 2015
CASE MAY BE CITED AS:	DPP and Furness Ruling No. 2 (CR-01197)
MEDIUM NEUTRAL CITATION:	[2015] VCC 1650

REASONS FOR RULING
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Subject:  CRIMINAL LAW

Catchwords:             Ruling – Defence application to cross examine complainant on Basha Inquiry as to allegations made in relation to another male person – Issue of substantial relevance to a fact in issue

Legislation:               Criminal Procedure Act 2009 – s.349
Ruling:  Application refused

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Hannan	Solicitor for Public Prosecutions
For the Accused	Ms C. Thomson	Slades & Parsons

HER HONOUR:

1       In the circumstances where the complainant was 18 years old when she made a complaint against Mr Furness, she had the wherewithal to either fabricate allegations or not without reference to any other individual where she says that similar acts befell her at his hands.  It is not suggested that she is not telling the truth when it comes to allegations against Mr Lucas; simply, there is a theory floated by defence that perhaps she has transposed to Mr Furness acts performed upon her and acts performed by her in relation to Mr Lucas.

2       I note that she made allegations against Mr Lucas at a time after she made allegations to police about Mr Furness.

3 In my view, weighing up the considerations set out in s.349 of the Criminal Procedure Act 2009, the evidence which is sought to be adduced through cross-examination at a Basha inquiry, and no doubt, beyond does not have substantial relevance to the fact in issue and therefore I am not going to allow the cross-examination:

4       In simple terms, the complainant was at an age and stage where she was capable of making the allegation against Mr Furness and she clearly made an allegation which she said applied to him, notwithstanding that some of the details about it were somewhat lacking.  The questions which are sought to be asked of her do not have substantial relevance to a fact in issue in this trial because her credibility and reliability are matters which are central, and where she is 18 years of age when she makes the allegations against Mr Furness, the question of transposition, in my view, does not properly arise, and so therefore I refuse the application.