R v B I C - [2009] VSCA 155

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 804 of 2008

THE QUEEN
	v
BIC

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JUDGES:	VINCENT and NEAVE JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 June 2009
DATE OF JUDGMENT:	26 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 155
JUDGMENT APPEALED FROM:	R v BIC (Unreported, County Court of Victoria, Judge Bourke, 22 August 2008

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CRIMINAL LAW – Conviction – Committing an indecent act with a child – Whether convictions unsafe and unsatisfactory – Child complainant – Whether the child complainant could distinguish between truth and lies – R v NRC [1993] 3 VR 537 – Whether there were prior inconsistent statements – M v R (1994) 181 CLR 487 – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr S Gillespie-Jones	Paul Vale Solicitors

VINCENT JA
NEAVE JA
COGHLAN AJA:

The applicant was, on the 31 July 2008, found guilty by the jury empanelled upon his trial in the County Court at Melbourne on two counts of committing an indecent act with a child, (to whom we will refer as L) under 16 years (counts 1 and 2). He was acquitted on a further count of the sexual penetration of the child (count 3).

He now seeks leave to appeal against these convictions on the grounds that –

1. The convictions were unsafe and unsatisfactory.
2. The learned trial judge erred in
(a)failing to give an explanation as to the importance of telling the truth and not to tell lies to L contrary to section 23(1D)(a) of the Evidence Act 1958;
(b)failing to give an explanation to L that she may be asked questions that make suggestions that are true or untrue and that she should agree with the statements that are true and should not feel pressured to agree with statements that she believes are untrue contrary to section 23(1D)(c) of the Evidence Act 1958;
…
(d)failing to inquire as to the understanding of L
(i)as to the nature of giving evidence as opposed to answering questions pursuant to section 23 (1A) of the Evidence Act 1958; and
(ii)that the importance of telling the truth in court was much greater than on other occasions;
(iii)as to the serious and adverse consequences which might follow for the applicant if she was to fail to tell the truth.

3.The learned trial judge erred in failing to direct that that it would be dangerous to convict the accused on the unsupported evidence of the complainant, unless after thorough scrutiny on that evidence and paying heed to the warning which the judge was giving, they were convinced of its truth and accuracy.
4.The learned trial judge erred in failing to direct on prior inconsistent statements.
5.The learned trial judge erred in his directions as to complaint.
6.The learned trial judge erred in failing to give a propensity warning.

The Evidentiary Background[1]

[1]The summary of the evidence in this judgment has…

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 R v B I C

Details

AGLC: R v B I C [2009] VSCA 155
Case: [2009] VSCA 155
Decision Date: 26 June 2009

CaseChat Overview and Summary

In the case of R v B I C, the appellant sought to appeal against his convictions for committing an indecent act with a child. The appeal was heard in the Court of Criminal Appeal in Victoria. The appellant contested the safety and reliability of his convictions, arguing that the evidence provided by the child complainant was insufficient to establish the offence beyond reasonable doubt. The appellant contended that the child complainant, due to her age, lacked the ability to distinguish between truth and lies, and that there were prior inconsistent statements made by the child that undermined her credibility.

The primary legal issues before the court were whether the convictions were safe and satisfactory, and whether the evidence of the child complainant was reliable and sufficient to support the convictions. The court considered the principles established in R v NRC and M v R, which require that the evidence of a child complainant be carefully scrutinised to ensure that it is reliable and that the child has the capacity to understand the difference between truth and lies. The court also considered whether the child's prior inconsistent statements had any bearing on her credibility.

The Court of Criminal Appeal found that the convictions were safe and satisfactory. The court determined that the child complainant had demonstrated an understanding of the difference between truth and lies, and that her evidence was consistent and reliable. The court rejected the appellant's argument that the child's prior inconsistent statements undermined her credibility, finding that these statements did not have a significant impact on the overall reliability of her evidence. The court held that the evidence, when viewed in its entirety, was sufficient to support the convictions beyond reasonable doubt.

The appeal was dismissed, and the convictions were upheld. The court did not make any further orders beyond the dismissal of the appeal.

Orders