INTERLOCUTORY APPEAL – Maintaining a sexual relationship with a child under 16 – Uncharged acts – Admissibility – Complainant sole source of evidence of uncharged acts – Tendency evidence – Evidence of sexual interest by accused in complainant – Evidence Act 2009 – s 97 and s 101 – Significant probative value substantially outweighing any prejudice – Relevance of Common Law as guide.
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Appearances:
Counsel
Solicitors
For the Applicant
Mr I Hill QC with Mr D A Dann
James Dowsley & Assoc
For the Respondent
Mr J Champion SC with Mr G Barr
Mr C Hyland, Solicitor for Public Prosecutions
REDLICH JA:
Interlocutory appeal from ruling that evidence of uncharged acts admissible as tendency and context evidence
The applicant, who is charged with one count of maintaining a sexual relationship with a child under the age of 16,[1] seeks leave to appeal pursuant to s 295 of the Criminal Procedure Act 2009 against an interlocutory decision of Judge Sexton in the County Court that evidence of sexual activity and other discreditable conduct of the applicant that was not relied upon to establish the particulars of the charge was admissible as tendency evidence pursuant to s 97 of the Evidence Act 2009 (‘the Act’), and could also be used for the purpose of showing context. Her Honour also ruled that the evidence was not to be excluded under ss 101, 135 or 137 of the Act, or its use limited pursuant to s 136.
[1]This was the predecessor to the current offence in s 47A of the Crimes Act 1958 of ‘persistent sexual abuse of a child under the age of 16’. The change in the name of the s 47A offence only applies to offences alleged to have been committed on or after 1 December 2006: s 606A(2).
The applicant requested that the trial judge certify that the evidence, if ruled inadmissible, would ‘eliminate or substantially weaken’ the prosecution case, so as to satisfy the precondition to the application for leave to appeal to this Court.[2] As the Crown consented to that course, a certificate was granted.
To determine whether to grant leave, this Court must consider whether it is in the interests of justice to do so, consistent with the factors enumerated in s 297(1) of the Criminal Procedure Act 2009. It is not in dispute that if the ruling was erroneous, one or more of the criteria in s 297 would be satisfied.
The offence and conduct charged
The offence of ‘maintaining a sexual relationship with a child under the age of 16’ (as it was previously called) was defined in s 47A of the Crimes Act 1958 in the following terms:
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
JLS v The Queen [2010] VSCA 209
Case
[2010] VSCA 209
Decision Date
CaseChat Overview and Summary
The case of JLS versus The Queen involved an interlocutory appeal regarding the admissibility of uncharged acts in a criminal case. The applicant, JLS, was accused of maintaining a sexual relationship with a child under 16 years of age. The court was required to decide whether evidence of uncharged acts was admissible under the Evidence Act 2009, sections 97 and 101. The primary concern was that the complainant was the sole source of evidence of these uncharged acts.
The court analysed whether the probative value of the evidence substantially outweighed any prejudice to the applicant. The case hinged on whether the evidence of sexual interest by the accused in the complainant was relevant and whether it could be considered as a guide in determining admissibility. The court noted that, in determining relevance under common law, it was essential to consider the context and circumstances of each case. The applicant argued that the prejudicial effect of admitting the uncharged acts would outweigh their probative value. However, the court found that the evidence was necessary to understand the context of the charged offence and was therefore admissible.
Ultimately, the court granted the applicant leave to appeal but dismissed the appeal. The court determined that the probative value of the evidence of uncharged acts did substantially outweigh any prejudice to the applicant. Therefore, the evidence was deemed admissible. The court also acknowledged the relevance of common law principles in guiding the admissibility of such evidence. This decision highlights the importance of considering both statutory and common law principles when determining the admissibility of uncharged acts in criminal proceedings.
Orders
Orders of the court
I would grant the applicant leave to appeal and dismiss the appeal.