Enrique Saenz v The Queen

[2012] HCASL 60

ENRIQUE SAENZ
v
THE QUEEN
[2012] HCASL 60
M57/2011

1. On 14 July 2009, in the County Court of Victoria, the applicant pleaded not guilty to one count of attempted kidnapping contrary to s 321M of the Crimes Act 1958 (Vic) and the common law. The applicant was alleged to have attempted to kidnap a 14 year old schoolgirl in a public park by means of physical force. At trial, the complainant gave evidence by means of a video recording. Section 37B(2) of the Evidence Act 1958 (Vic) ("the Act") relevantly provided that, in certain legal proceedings, the evidence-in-chief of a prosecution witness could be given wholly or partly in the form of an audio or video recording if the witness was under the age of 18. Under s 37B(1)(b) of the Act, such proceedings relevantly included a proceeding, other than a committal proceeding, related to a charge for "an indictable offence which involves an assault on, or injury or a threat of injury to, a person".

2. On 21 July 2009, the jury returned a verdict of guilty.  On 28 August 2009, the applicant was sentenced in the County Court of Victoria (Gamble J) to imprisonment for a term of six years, with a non-parole period of three years and nine months.    

3. On 25 May 2011, the Court of Appeal of the Supreme Court of Victoria (Buchanan JA, with whom Neave JA and Kaye AJA agreed) unanimously refused the applicant leave to appeal against conviction and sentence.  Among the grounds upon which the applicant had sought leave to appeal was that the complainant should not have been permitted to give evidence in the form of a video recording.  The Court of Appeal did not accept this contention.

4. The applicant's application for special leave to appeal to this Court contends that the Court of Appeal erred in its interpretation of s 37B of the Act in three respects. First, the Court of Appeal is said to have erred in holding that the offence of kidnapping at common law is an offence that "involves an assault on, or injury or threat of injury to, a person". Secondly, it is said that the Court of Appeal erred in finding that the applicant was tried for an offence that "involves an assault on, or injury or threat of injury to, a person". Thirdly, the Court of Appeal is said to have erred in holding that an element of the offence with which the applicant was charged, and for which he was tried, was an attempt to overcome the will of a person by the application of physical force.

5. The Court of Appeal's findings are not attended by sufficient doubt to warrant a grant of special leave to appeal.  The interests of the proper administration of justice are not engaged by this application.  

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

W.M.C. Gummow	S.M. Kiefel
29 March 2012