Green (a pseudonym) v The Queen - [2015] VSCA 279

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0073

KARL GREEN (A PSEUDONYM)[1]	Applicant
V
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES:	REDLICH, KAYE JJA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 October 2015
DATE OF JUDGMENT:	19 October 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 279
JUDGMENT APPEALED FROM:	DPP v [Green] (Unreported, County Court of Victoria, Judge Mullaly, 11 December 2014 (conviction))

---

CRIMINAL LAW – Appeal – Conviction – Incest, indecent assault, indecent act with a child – Whether judge erred in not permitting tender into evidence of letter written by complainant – Whether letter relevant – Whether tone of letter sufficient to permit tender at trial – Whether disclosure of content of letter would contravene prohibition against questions concerning complainant’s sexual activities pursuant to section 342 of the Criminal Procedure Act 2009 – Evidence to be adduced must have capacity to rationally affect or bear on probabilities of a fact in issue – Whether judge gave correct directions to jury in relation to standard of proof applicable specific uncharged acts – R v Sadler (2008) 20 VR 69 – Leave to appeal refused – Evidence Act 2008 (Vic) s 55.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Randazzo SC	Doogue O’Brien George
For the Crown	Mr B F Kissane QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA
KAYE JA
BEALE AJA:

The applicant was convicted, by the jury empanelled on his trial, of four charges of sexual offences committed against his then stepdaughter, AM, between 2000 and 2009. Following a plea, he was sentenced to a total effective term of 5 years and 2 months’ imprisonment, with a minimum non-parole period of 3 years and 4 months’ imprisonment.

The charges, on which the applicant was convicted, were:

Charge 1:Incest between 24 February 2002 and 26 February 2002 contrary to s 44(1) of the Crimes Act 1958.
Charge 2:Indecent act with a child between 27 August 2004 and 26 August 2006 contrary to s 47(1) of the Crimes Act.
Charge 3:Indecent assault between 1 January 2009 and 31 December 2009 contrary to s 39(1) of the Crimes Act.
Charge 4:Indecent assault between 27 August 2009 and 31 December 2009 contrary to s 39(1) of the Crimes Act.

The applicant seeks leave to appeal against his conviction on two grounds:

(1)The judge erred in not permitting the cross-examination of the complainant and tender of an entire letter written by the complainant in 2008 at the commencement of Year 11.
(2)The judge erred in not directing the jury that they should be satisfied beyond reasonable doubt as to events alleged to have occurred in Tasmania and Queensland, before they could rely on those acts on proof of the charged acts.

Background

The applicant…

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 Green (a pseudonym) v The Queen

Details

AGLC: Green (a pseudonym) v The Queen [2015] VSCA 279
Case: [2015] VSCA 279
Decision Date: 19 October 2015

CaseChat Overview and Summary

The case of Green v The Queen involves an appeal by the defendant against their conviction on charges of incest, indecent assault, and indecent acts with a child. The trial took place in the County Court of Victoria, with the appeal being heard by the Court of Appeal. The key issue before the court was whether the trial judge erred in not permitting the tendering of a letter written by the complainant into evidence. The defendant argued that the letter was relevant and its tone was sufficient to allow its admission. The court had to determine whether the disclosure of the content of the letter would contravene the prohibition against questions concerning the complainant’s sexual activities, as outlined in section 342 of the Criminal Procedure Act 2009. Additionally, the court needed to assess whether the evidence had the capacity to rationally affect or bear on the probabilities of a fact in issue and whether the judge gave the correct directions to the jury regarding the standard of proof applicable to specific uncharged acts.

The Court of Appeal examined the principles established in R v Sadler (2008) 20 VR 69, which emphasised that evidence to be adduced must have the capacity to rationally affect or bear on probabilities of a fact in issue. The court noted that the letter's content could have implications for the credibility of the complainant and the defendant's innocence. However, the court also had to consider the statutory prohibition on questions about the complainant’s sexual activities. After a thorough analysis, the Court of Appeal concluded that the trial judge had correctly exercised their discretion in excluding the letter, as it did not meet the criteria for relevance under the Evidence Act 2008 (Vic) s 55. The court found no error in the judge's directions to the jury regarding the standard of proof for uncharged acts.

As a result, the Court of Appeal dismissed the appeal and upheld the conviction. The court found that the trial judge had correctly exercised their discretion in excluding the letter and that the judge had provided the jury with accurate directions regarding the standard of proof applicable to the uncharged acts. Consequently, the defendant's appeal was unsuccessful, and the conviction stood.

Orders