CRIMINAL LAW – Conviction – Incest – Credibility of complainant – Witness called on behalf of defence to say that she would not believe complainant on her oath – Whether witness’ evidence wrongly rejected – Expert witness called on behalf of defence to give evidence regarding infantile amnesia – Collateral evidence rule – Whether expert’s evidence wrongly rejected – Whether inadequate directions given to jury – Delay in reporting offences – Kilby direction – Longman warning – Bench of five judges constituted to consider correctness of Taylor (No 2) [2008] VSCA 57 – Application of doctrine of precedent to five-judge court – Whether recent complaint – Liberato direction – Onus of proof – Appeal allowed on expert witness ground – Retrial ordered.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr J D McArdle QC with Ms G T Cannon
Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant
Mr P G Priest QC with Mr S Gillespie-Jones
Ferraro Pruscino & Co Solicitors
VINCENT JA WEINBERG JA:
On 30 October 2008, the Court heard and determined this application for leave to appeal against conviction. At the conclusion of the hearing, the Court pronounced orders. It granted leave to appeal, ordered that the appeal be allowed, that the convictions be quashed and that there be a new trial. The Court stated that reasons would be given at a later time. These are those reasons.
In May 2008, BDX (hereafter referred to as ‘the appellant’, leave to appeal having been granted) was presented for trial in the County Court on three counts of incest. The complainant was his stepdaughter.
Count 1 alleged an act of digital penetration between 1 January 1997 and 31 December 1998. Count 2 alleged an act of sexual intercourse between 1 March 1998 and 30 April 1998. Count 3 alleged a further act of sexual intercourse between 1 January 2001 and 31 December 2002.
The appellant was convicted on counts 1 and 3, but acquitted on count 2. He was sentenced to three years and six months’ imprisonment on each of the two counts on which he was convicted, with a year of the sentence imposed on count 1 ordered to be served cumulatively upon the sentence imposed on count 3. That made a total effective sentence of four years and six months’ imprisonment. A non-parole period of two years and three months’ imprisonment was fixed.
The background facts may be briefly stated. The complainant was born in August 1990. She was therefore about seven or eight years of age at the time of the offence that gave rise to count 1, and about 10 or 11 years of age at the time of the offence…
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 v BDX [2009] VSCA 28
Case
[2009] VSCA 28
Decision Date
CaseChat Overview and Summary
In this case, the respondent, BDX, was convicted of incest and related offences against a complainant, his daughter. The case was heard by the Supreme Court of Victoria, with the appeal being heard by a full bench of five judges. The primary issue for the court was whether the trial judge had erred in excluding the evidence of a defence witness who was called to give an opinion on the complainant’s credibility. The court also considered whether the trial judge had erred in excluding the evidence of a defence expert witness who was to give evidence regarding infantile amnesia, and whether the trial judge had given adequate directions to the jury regarding the complainant’s delay in reporting the offences.
The court found that the trial judge had erred in rejecting the evidence of the defence witness who gave an opinion on the complainant’s credibility. The court held that this witness’ evidence should have been admitted as it was relevant to the complainant’s credibility and the weight to be given to her evidence. The court also found that the trial judge had erred in excluding the evidence of the defence expert witness who was to give evidence regarding infantile amnesia. The court held that the evidence should have been admitted as it was relevant to the complainant’s memory and the reliability of her evidence. The court found that the trial judge had not given adequate directions to the jury regarding the complainant’s delay in reporting the offences, but that this error was not sufficient to warrant a miscarriage of justice.
The court held that the appeal should be allowed on the ground that the trial judge had erred in excluding the evidence of the defence expert witness. The court held that the error was not harmless and that it was likely to have had a significant effect on the outcome of the trial. The court held that a retrial was the appropriate remedy and ordered a retrial of the respondent on the charges of incest and related offences.