Legal Research
Cases
Lancaster v R

Lancaster v R

Case [2014] VSCA 333 17 December 2014

Criminal Liability

Expert Evidence

Bias

Admissibility of Evidence

Hearsay

Appeal

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0264
SHAUN RANDALL LANCASTER	Applicant
v
THE QUEEN	Respondent
S APCR 2013 0190
SHAUN RANDALL LANCASTER	Applicant
v
THE QUEEN	Respondent

---

JUDGES	NETTLE and REDLICH JJA and ALMOND AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 May and 28 November 2014
DATE OF JUDGMENT	17 December 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 333
JUDGMENT APPEALED FROM	DPP v Lancaster (Unreported, County Court of Victoria, Judge Mullaly, 10 April 2013)

---

CRIMINAL LAW – Indecent acts with a child under 16 years, sexual penetrations of a child under 16 years, make threat to kill – Expert opinion evidence based upon representations in business records – Whether exclusion of business records productive of a substantial miscarriage of justice – Complainant exhibiting sexualised behaviour – Whether result of exposure to sexual conduct or sexual abuse – Risk of misattribution or transference – Whether judge erred in refusing leave under s 342 of the Criminal Procedure Act 2009 to cross-examine complainant – Appeal allowed.

CRIMINAL LAW – Tendency evidence – Sexual interest in complainant – Gentry (a Pseudonym) v The Queen [2014] VSCA 211, applied – Whether anti-propensity warning required – Grech v The Queen [1997] 2 VR 609, discussed – Grech directions qualified.

CRIMINAL LAW – Ostensible bias – Whether undue intervention in trial – Whether judge’s refusal to recuse himself gave rise to apparent bias – Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, applied.

EVIDENCE – Business records – Files maintained by Department of Human Services and other cognate organisations – Expert opinion evidence based on facts recorded in files sought to be tendered by defence – Whether files admissible into evidence as business records under s 69 of the Evidence Act 2008 – Whether contents of files rightly excluded as hearsay – Procedure to be followed – Each entry in files relied upon in expert reports reviewed to determine whether that entry satisfies requirements of admissibility in s 69(2) – Whether representations by person who had personal knowledge of facts – Second-hand or more remote hearsay – Sections 62 and 69 of the Evidence Act 2008.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr Simon Gillespie-Jones and Ms Elizabeth McKinnon	Riordan Legal Pty Ltd
For the Crown	Ms F L Dalziel	Mr Craig Hyland, Solicitor for Public Prosecutions

NETTLE JA

REDLICH JA
ALMOND AJA:

These are applications for leave to appeal against convictions of sexual offences alleged to have been committed against two complainants, CA and CB. There are also applications for leave to appeal against sentence.

In July 2012, the applicant was tried for the offences alleged to have been committed against CA and convicted of one charge of indecent act with a child under 16 years and two charges of sexual penetration of a child under 16 years (‘the CA offences’). In February 2013, he was tried before the same judge but with a different jury for the offences alleged…

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 Lancaster v R

Details

AGLC: Lancaster v The Queen [2014] VSCA 333
Case: [2014] VSCA 333
Decision Date: 17 December 2014

CaseChat Overview and Summary

The appeal before the court involved the appellant, Lancaster, who was convicted of multiple charges including indecent acts with a child under 16 years, sexual penetrations of a child under 16 years, and making a threat to kill. The appellant contested the admissibility of certain evidence, including expert opinion evidence based on representations in business records, and challenged the judge's refusal to allow cross-examination of the complainant. The appeal raised several legal issues concerning the admissibility of expert evidence, the requirement of anti-propensity warnings, and the potential for ostensible bias on the part of the trial judge.

The court examined whether the exclusion of the business records was likely to result in a substantial miscarriage of justice and whether the expert opinion evidence was admissible. The court held that the judge should have reviewed each entry in the files to determine if it satisfied the requirements of admissibility under section 69 of the Evidence Act 2008. The court also considered whether the complainant's sexualised behaviour was a result of exposure to sexual conduct or abuse, and if there was a risk of misattribution or transference. Furthermore, the court assessed whether the judge's refusal to recuse himself and allow cross-examination of the complainant led to apparent bias.

The court concluded that the trial judge erred in refusing to allow cross-examination of the complainant and in excluding the expert opinion evidence. The court held that the exclusion of this evidence was likely to result in a substantial miscarriage of justice. The court also found that the judge's refusal to recuse himself did not give rise to apparent bias. Consequently, the appeal was allowed, and the convictions were quashed.

The final orders of the court were to quash the convictions and order a retrial of the appellant. The court emphasised the importance of ensuring that the admission of evidence does not lead to a substantial miscarriage of justice and that the rights of the accused are protected. The court also highlighted the need for careful consideration of expert evidence based on business records and the application of anti-propensity warnings in sexual offence cases.

Orders