CRIMINAL LAW – Interlocutory appeal – Indecent assault numerous counts – Attempted rape and rape – Two complainants – Evidence – Admissibility of tendency and coincidence evidence – Whether judge erred as to admissibility – Whether charges should be severed from indictment – Appeal allowed.
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Appearances:
Counsel
Solicitors
For the Applicant
Mr R McCloskey with Mr J Tran
Coolabah Law Chambers
For the Respondent
Mr G J C Silbert SC with Mr D F Cosgriff
Mr C Hyland, Solicitor for Public Prosecutions
NETTLE JA
HARPER JA HANSEN AJA:
This is an interlocutory appeal, pursuant to s 295 of the Criminal Procedure Act 2009, from orders of her Honour Judge Pullen.
The applicant stands indicted on a single indictment of multiple counts of sexual offences against two complainants, as follows:
a) as against the first complainant (C1), on 15 counts of indecent assault (Counts 1 to 8 and 10 to 16); two counts of attempted rape (Counts 9 and 18); and one count of rape (Count 17); and
b) as against the second complainant (C2), on two counts of indecent assault (Counts 19 and 20) and one count of rape (Count 21).
The first and principal aspect of the appeal relates to interlocutory rulings made by the judge on 1 June 2010, that:
a) evidence of each complainant as to certain uncharged acts of a sexual nature committed by the applicant at the Korumburra Hotel in the presence of the complainant and as to the offences alleged to have been committed against the complainant is admissible as tendency evidence in proof of the offences alleged to have been committed against the other complainant;
b) evidence proposed to be given by two other women (WE and WR), as to uncharged acts which the applicant is alleged to have committed against them and other women, is admissible as tendency evidence in proof of the offences alleged to have been committed against each complainant; and
c) on that basis, Counts 19, 20 and 21 should not be severed from the indictment.
The second aspect of the appeal concerns a ruling made by the judge on the same day as to admissibility of complaints made by each of the complainants as evidence of representations under s 66 of the Evidence Act 2008 and that the Crown may rely on the evidence not only as evidence of the fact of the complaints but also as evidence of the facts complained of.
Tendency Evidence
It is convenient to deal first with the question of tendency evidence. Before turning to the specific offences and the evidence said to be admissible as tendency evidence, it is also convenient to record that, at relevant times, the applicant worked as the…
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.
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Details
AGLC
GBF v The Queen [2010] VSCA 135
Case
[2010] VSCA 135
Decision Date
CaseChat Overview and Summary
In the case of GBF v The Queen, the appellant was charged with multiple offences, including indecent assault, attempted rape, and rape, involving two separate complainants. The appellant sought an interlocutory appeal against the trial judge's decision to admit evidence of a propensity to commit indecent assaults and evidence of coincidence. The High Court of Australia was asked to determine whether the trial judge erred in admitting this evidence and whether the charges should have been severed from the indictment.
The primary legal issues before the court were the admissibility of tendency evidence under section 97 of the Evidence Act and the admissibility of coincidence evidence under section 98 of the same Act. The appellant argued that the evidence was not relevant to any issue in the case and that its probative value was substantially outweighed by the danger of unfair prejudice. Furthermore, the appellant contended that the charges should have been severed to prevent a risk of unfair prejudice and confusion of the issues.
The court found that the trial judge did not err in admitting the tendency evidence, as it was relevant to the issue of the appellant's identity as the perpetrator of the offences. However, the court held that the trial judge erred in admitting the coincidence evidence, as it did not have sufficient probative value to outweigh the risk of unfair prejudice. The court also found that the charges should not have been severed, as there was no significant risk of unfair prejudice or confusion of the issues. Consequently, the court allowed the appeal, quashed the convictions, and ordered a retrial.
The court ordered that the appellant's convictions be quashed and that a retrial be conducted. The court emphasised that the trial judge should exercise greater caution in admitting coincidence evidence and ensure that its probative value outweighs the risk of unfair prejudice. Additionally, the court stressed the importance of considering the potential for prejudice and confusion when deciding whether to sever charges in a single indictment.