R v BAH (No 2) - [2005] VSCA 197

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 247 of 2004

THE QUEEN
	v.
B.A.H. (No. 2)

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JUDGES:	WARREN, C.J., MAXWELL, P. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 August 2005
DATE OF JUDGMENT:	2 August 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 197

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CRIMINAL LAW — One count of incest and one count of indecent assault with child under 16 — Whether judge erred in directions to the jury in relation to evidence of uncharged acts and whether judge failed to give a propensity warning – Discussion of the relevant requirement outlined in R v Grech – Appeal allowed – Convictions quashed – Matters remitted for retrial.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R.E. Carlin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Victoria Legal Aid

WARREN, C.J.:
MAXWELL, P.:
HARPER, A.J.A.:

This matter has a long procedural history. On 23 July 2001, the applicant pleaded not guilty to both counts that are the subject of the appeal on a presentment alleging one count of indecent assault with a child under 16, contrary to s.47(1) of the Crimes Act 1958 (the first count) and one count of incest, contrary to s.44(1) of the Crimes Act (the second count). On 26 July 2001, a jury returned verdicts of guilty on both counts. The applicant admitted to 77 prior convictions from 20 appearances, mostly for alcohol-related driving offences, but including convictions for assault, assault with a weapon and causing injury intentionally, although it is to be noted that he had no prior convictions for sexual offences. On 10 August 2001, the trial judge sentenced the applicant to one year's imprisonment for the first count, to be served concurrently with a sentence of three years' imprisonment for the second count. This resulted in a total effective sentence of three years' imprisonment, with a non-parole period ordered of two years' imprisonment.

On 2 October 2002, the Court of Appeal allowed the applicant's appeal against conviction and ordered a new trial. On 9 February 2004 a presentment was filed in the County Court at Melbourne, alleging the same two counts. On 17 February 2004 the jury was discharged without verdict. On 6 September 2004 the applicant pleaded not guilty in the County Court in Melbourne to a presentment alleging again the same two counts. A jury was empanelled and, on 9 September 2004, delivered a unanimous verdict of guilty on both counts. On 24 September 2004 the applicant was sentenced to 18 months' imprisonment on the indecent assault, to be served concurrently with the sentence of four-and-a-half years' imprisonment on the incest count. The sentencing judge fixed a non-parole period of four years' imprisonment to commence on 18 December 2003, having regard to a sentence the applicant was currently serving with respect to unrelated matters. The maximum penalty for committing an indecent act with a child under 16 is 10 years' imprisonment and, for incest, 25 years' imprisonment. On 20 September 2004…

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 BAH (No 2)

Details

AGLC: R v BAH (No 2) [2005] VSCA 197
Case: [2005] VSCA 197
Decision Date: 2 August 2005

CaseChat Overview and Summary

The case of R v BAH (No 2) involved the appellant, BAH, who was convicted by a jury on one count of incest and one count of indecent assault with a child under 16. The appeal focused on the trial judge's directions to the jury regarding evidence of uncharged acts and whether the judge had failed to provide a propensity warning. The legal issues centred on whether the judge had correctly applied the principles set out in R v Grech concerning the admissibility and use of propensity evidence, and whether any error in this regard was sufficiently serious to warrant a retrial.

The court examined the trial judge's directions to the jury, noting that the judge did not expressly state that the evidence of uncharged acts could not be considered as proof of propensity. Instead, the judge's directions implied that such evidence could be considered by the jury in determining whether the appellant's acts had a propensity towards incest or indecent assault. The court found that this constituted a significant error, as it failed to adequately caution the jury against using the evidence for the purpose of establishing a propensity. The failure to provide a clear propensity warning was held to be a misdirection that potentially prejudiced the appellant, warranting the quashing of his convictions.

In light of the misdirection, the court concluded that the error was not harmless and amounted to a substantial miscarriage of justice. Consequently, the convictions were quashed, and the matter was remitted for retrial. The court's decision underscored the importance of clearly articulating the limited circumstances in which evidence of uncharged acts can be considered by a jury, particularly in cases where such evidence risks being misused to establish a propensity. The appellant's appeal was thus allowed, and the convictions were quashed, with the case to be retried in accordance with the principles outlined in R v Grech.

Orders