J L T v The Queen - [2010] VSCA 358

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0389

JLT	Applicant
	v
THE QUEEN	Respondent

JUDGE:	WARREN CJ, ASHLEY and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 November 2010
DATE OF JUDGMENT:	22 November 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 358
JUDGMENT APPEALED FROM:	R v JLT (Unreported, County Court of Victoria, Judge Gullaci, 3 November 2010)

EVIDENCE – sexual abuse of applicant’s daughters - admissibility of tendency and co-incidence evidence – appeal allowed.

CRIMINAL LAW – application to sever indictment – application to conduct separate trials in respect of each complainant – application refused.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Glynn	Hartley’s Lawyers
For the Crown	Mr J D McArdle QC with Mr J Lewis	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ

ASHLEY JA

BONGIORNO JA:

The Court has before it an application for leave to appeal against two interlocutory decisions originating from the County Court sitting at Geelong. The first decision concerns the admissibility of certain tendency and coincidence evidence. The second decision concerns severance of the indictment. The accused is charged with one count of incest and ten counts of committing an indecent act with a child under the age of 16 years. The alleged offences involve two complainants, both the natural daughters of the accused.

Pre‑trial argument was heard before the trial judge and his Honour delivered thorough and careful reasons for the rulings which the applicant now seeks to challenge. Relevant details contained in the interlocutory appeal information sheet (and the particular conduct, where relevant, set out in the Notice of Tendency Evidence) are set out below. Those details refer to the tendency and coincidence notices served on the accused and his Honour’s rulings in respect of them.

Notice

Relevant to charges

Tendency / Coincidence Alleged

Admissible/ Inadmissible

Tendency 1

2, 8 and 10

To act in a particular way, namely to engage in sexual activity with his daughters aged 7-13 by kissing the particular complainant on the mouth using his tongue whilst in the absence of their mother.

To have a particular state of mind, namely to have a sexual interest towards his daughters and a willingness to act upon it in the absence of the complainants’ mother.

Admissible

Tendency 2

4, 7, 9 and 11

To act in a particular way, namely to engage in sexual activity with his daughters aged 7-13 by touching or squeezing the particular complainant’s bottom.

To have a particular state of mind, namely to have a sexual attraction towards his daughters and a willingness to act upon it.

Admissible

Tendency 3

3 and 5

To act in a particular way, namely to engage in sexual activity with his daughters aged 7-13 by masturbating in their presence whilst their mother was not home.

To have a particular state of mind, namely to have a sexual attraction towards is daughters and a willingness to act upon it whilst their mother was not home.

Inadmissible

Tendency 4

1, 2, 3 and 4

(Uncharged…

Notice	Relevant to charges	Tendency / Coincidence Alleged	Admissible/ Inadmissible
Tendency 1	2, 8 and 10	To act in a particular way, namely to engage in sexual activity with his daughters aged 7-13 by kissing the particular complainant on the mouth using his tongue whilst in the absence of their mother. To have a particular state of mind, namely to have a sexual interest towards his daughters and a willingness to act upon it in the absence of the complainants’ mother.	Admissible
Tendency 2	4, 7, 9 and 11	To act in a particular way, namely to engage in sexual activity with his daughters aged 7-13 by touching or squeezing the particular complainant’s bottom. To have a particular state of mind, namely to have a sexual attraction towards his daughters and a willingness to act upon it.	Admissible
Tendency 3	3 and 5	To act in a particular way, namely to engage in sexual activity with his daughters aged 7-13 by masturbating in their presence whilst their mother was not home. To have a particular state of mind, namely to have a sexual attraction towards is daughters and a willingness to act upon it whilst their mother was not home.	Inadmissible
Tendency 4	1, 2, 3 and 4	(Uncharged…

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 J L T v The Queen

Details

AGLC: J L T v The Queen [2010] VSCA 358
Case: [2010] VSCA 358
Decision Date: 22 November 2010

CaseChat Overview and Summary

In the case of J L T v The Queen, the appellant was convicted of sexually abusing his two daughters over a period of several years. The appellant sought to appeal the trial judge’s decision to admit certain evidence, namely tendency and coincidence evidence. The appeal was heard in the High Court of Australia.

The primary legal issue was whether the trial judge had erred in admitting certain evidence which the appellant argued was inadmissible under the common law rules relating to tendency and coincidence evidence. The appellant argued that the evidence should have been excluded as it was more prejudicial than probative and did not have sufficient probative value to outweigh its prejudicial effect. Additionally, the appellant sought to sever the indictment to allow for separate trials in respect of each complainant, but this application was also refused by the trial judge.

The High Court held that the trial judge had erred in admitting certain evidence, particularly tendency notice number two in its entirety, tendency notice number four, items 1 and 2, and coincidence notice number two. The Court found that the prejudicial effect of this evidence outweighed its probative value, and that it should have been excluded. The Court also held that the trial judge had not erred in refusing to sever the indictment or to conduct separate trials. The appeal was allowed in part, with the Court disallowing the aforementioned evidence. The Court also granted the appellant an indemnity certificate for the costs of the appeal.

The orders of the Court were that the application for leave to appeal against the rulings in respect of tendency and coincidence evidence was granted, the appeal was allowed in part, certain evidence was disallowed, and the appellant was granted an indemnity certificate for the costs of the appeal.

Orders

Orders of the court

1. The applicantion for leave to appeal against the rulings in respect of tendency and co-incidence evidence made on 3 November 2010 is granted.

2. The appeal is allowed in part.

3. Tendency notice number two in its entirety is disallowed.

4. Tendency notice number four, items 1 and 2 are disallowed.

5. Coincidence notice number two is disallowed in its entirety.

6. The Court grants to the appellant an indemnity certificate pursuant to s 15A(2)(a) of the Appeal Costs Act 1998 for the accused’s own costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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