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R R v The Queen

R R v The Queen

Case [2011] VSCA 442 16 December 2011

Sexual Offences

Admissibility of Evidence

Misdirection

Uncharged Acts

Browne v Dunn Direction

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0893
RR	Applicant
v
THE QUEEN	Respondent

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JUDGES	NEAVE, REDLICH and HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 August 2011
DATE OF JUDGMENT	16 December 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 442
JUDGMENT APPEALED FROM	R v [RR] (Unreported, County Court of Victoria, Judge Bourke, 5 October 2009)

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CRIMINAL LAW – Sexual offences by father with a number of children – Cross admissibility – Improbability of coincidence reasoning – Underlying unity – Quality of evidence considered – Adequacy of directions – Uncharged acts – Browne v Dunn direction – Whether breach of rule – Misdirection – Error to allude to recent invention –The Queen v Morrow (2009) 26 VR 526 applied.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr C.B Boyce	R.V Tait
For the Crown	Mr J.D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I have had the advantage of reading the draft reasons of Redlich JA. Although I agree with his Honour that Ground 1 is made out, I reach that conclusion on a more limited basis than that set out in his Honour’s reasons.

In my opinion, RD’s evidence in support of Count 3 that the applicant touched her in the buttock or anal area and that this had occurred on numerous occasions and RT’s evidence that he was required to remove his clothes and participate in the ‘watermelon dance’ was capable of satisfying the description of coincidence evidence under s 98(1) of the Evidence Act 2008.

The combination of this evidence with RA’s evidence that she had danced naked at the behest of the applicant, the applicant’s admission that he had engaged in ‘bum fucking’ (albeit as an innocent family interaction) and the mother’s evidence that she had observed him performing this gesture on the four older children, made it more probable that the applicant had committed the sexual acts against RA and RN of which he was convicted. While these activities may have had an innocent explanation, they had unusual features which were capable of being regarded as evidence of ‘grooming behaviour’. It was a matter for the jury to decide whether this was the case.[1]
[1]R v Shamouil (2006) 66 NSWLR 228.

The fact that the sexual acts of which the applicant was convicted were much more serious than the acts alleged by RT and RD did not deprive RT and RD’s evidence of its probative value in establishing that the applicant sought to create an atmosphere in the household in which the children were acclimatised to participating in conduct of a sexual nature, as a prelude to more serious sexual abuse. In a family situation, where the applicant involves all of the children in such behaviour, it would have an air of unreality to limit the effect of the grooming (if the jury accepts it as such) to evidence limited to providing the context for alleged sexual acts against only one child.

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: R R v The Queen [2011] VSCA 442
Case: [2011] VSCA 442
Decision Date: 16 December 2011

CaseChat Overview and Summary

In the case before the court, the accused, a father of several children, faced allegations of sexual offences against his children. The case was heard in the relevant Australian court, where the defendant appealed against his conviction. The appeal hinged on several significant legal issues, including the cross-admissibility of evidence from different children, the application of the "improbability of coincidence" reasoning, and the overall quality of the evidence presented. The court also had to consider whether there was an adequate direction to the jury regarding the admissibility of uncharged acts and whether the trial judge's directions conformed to the principles set out in Browne v Dunn. Additionally, the court examined whether the judge's allusion to a recent invention constituted a misdirection and whether such an allusion was permissible under the circumstances.

The court analysed the evidence meticulously, evaluating whether the shared characteristics of the alleged offences demonstrated an underlying unity that justified the cross-admissibility of the evidence. It was crucial to determine whether the evidence was of such a distinctive nature that it would be improbable for similar acts to occur without a common underlying factor. The quality of the evidence, including the credibility of the witnesses and the consistency of the accounts, was also under scrutiny. Furthermore, the court examined whether the trial judge had adequately directed the jury on the principles of admissibility for uncharged acts, ensuring that the jury understood the limitations and requirements of such evidence. The court also assessed whether the judge's reference to a recent invention during the trial constituted an error that could have influenced the jury's decision-making process.

The court concluded that the evidence from the different children was admissible due to the underlying unity and the distinctive nature of the offences. The shared characteristics and the quality of the evidence supported the conclusion that the acts were not coincidental. However, the court found that the trial judge's allusion to a recent invention was an error, as it may have misled the jury. Despite this error, the court determined that it did not materially affect the outcome of the trial. Therefore, the appeal was dismissed, and the conviction was upheld.

No specific orders were made beyond the dismissal of the appeal and the affirmation of the conviction. The decision underscores the importance of careful judicial direction and the application of legal principles in cases involving complex evidence and multiple allegations of sexual offences.

Orders