MR v The Queen - [2011] VSCA 39

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0029

MR
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN, HARPER and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 February 2011
DATE OF JUDGMENT:	18 February 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 39

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INTERLOCUTORY APPEAL – Sexual offences - Counts 1 and 2 charge child pornography offences and count 3 charges indecent act – Single complainant is applicant’s daughter - Crown seeks to use photographs and video relating to counts 1 and 2 as tendency evidence relevant to count 3 – Admissible as evidence of applicant’s sexual interest in daughter – Judge correct to admit evidence and refuse severance – Application refused - Evidence Act 2008, s 97.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Condon	Lethbridges
For the Crown	Mr G Silbert SC and Ms P Thorp	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I will ask Hansen JA to give the first judgment.

HANSEN JA:

This is an application for leave to appeal from an interlocutory decision of a judge in the County Court made last Tuesday whereby the judge, in rejecting applications made on behalf of the accused:

(a) ruled as admissible tendency evidence pursuant to s 97 of the Evidence Act 2008; and

(b) refused to sever counts 1 and 2 from count 3 pursuant to s 194 of the Criminal Procedure Act 2009.

On the same day the judge granted a certificate in respect of these respective decisions pursuant to s 295(3)(a) and (b) of the Criminal Procedure Act 2009 and adjourned the trial pending the decision on this application.

The three counts with which the applicant is charged are:

one count of making or producing child pornography, being photographs of his daughter (count 1),

one count of causing her, being aged under 18, to be concerned in the making or production of child pornography (count 2), and

one count of an indecent act with her, being a child aged under 16 (count 3).

By notice dated 19 January 2011, the Crown, pursuant to s 97(1) of the Evidence Act 2008, advised the applicant of its intention to adduce certain tendency evidence concerning him. The evidence is stated to relate to the following facts in issue. As to the pornography counts, whether the images of the complainant are to be categorised as pornographic, and as to the indecent act count, whether, as alleged,

the accused pushed his bare penis against the complainant’s naked vagina. It is stated that the tendency to be proved is the tendency of the applicant to have a particular state of mind, namely to have a sexual interest in his young daughter and a willingness to act upon this sexual interest. The notice further identified the conduct of which evidence will be adduced, and the name of each person who saw, heard or otherwise perceived that conduct. This fell into two categories. The first is the evidence of the complainant…

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 MR v The Queen

Details

AGLC: MR v The Queen [2011] VSCA 39
Case: [2011] VSCA 39
Decision Date: 18 February 2011

CaseChat Overview and Summary

The applicant, MR, appealed against an interlocutory decision in a criminal case before the court. The case involved charges of child pornography offences and an indecent act, with the single complainant being the applicant's daughter. The Crown sought to introduce photographs and video evidence relating to the child pornography charges as tendency evidence relevant to the indecent act charge. The central legal issue was whether this evidence was admissible as evidence of the applicant's sexual interest in his daughter and if the judge was correct to admit the evidence and refuse a severance of the charges.

The court examined the provisions of the Evidence Act 2008, particularly section 97, which deals with the admissibility of evidence of a tendency. The court held that the evidence in question was relevant to establishing the applicant's sexual interest in his daughter, which was pertinent to the indecent act charge. Given the strong connection between the charges and the nature of the evidence, the court found that it was appropriate to admit the evidence and that there was no need for a severance of the charges. The court concluded that the judge's decision to admit the evidence and refuse the severance was correct.

The court dismissed the appeal, affirming that the judge's decision was well-founded. The evidence was deemed admissible under the relevant legal provisions and the connection between the charges was sufficiently strong to warrant its admission without severance. Consequently, the application to exclude the evidence and to sever the charges was refused. The court's decision underscored the importance of considering the relevance and probative value of evidence in relation to the charges at hand, especially in cases involving familial sexual offences.

Orders