R v BJC - [2005] VSCA 154

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 73 of 2004

THE QUEEN
	v.
B.J.C.

---

JUDGES:	WINNEKE, P., BYRNE and OSBORN, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 May 2005
DATE OF JUDGMENT:	23 June 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 154

---

Criminal Law – Five counts of indecent acts with child under 16 and eleven counts of incest – Whether judge adequately directed jury in relation to evidence of uncharged acts – Relevance and purpose of admission of evidence of uncharged acts discussed – Full Longman warning not required because the passage of time involved permitted adequate testing of evidence – Adequate Kilby warning given – Whether judge erred in raising the issue of the complainant’s motive to lie – Application against conviction dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. O.P. Holdenson, Q.C.	Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions

For the Respondent Mr. M.J. Croucher H.E.P. Steel

WINNEKE, P.:

I have had the advantage of reading, in draft form, the reasons which Osborn, A.J.A. gives for refusing this application. I agree with his Honour that, for the reasons which he gives, the application should be refused.

BYRNE, A.J.A.:

I have had the benefit of reading in draft the judgment of my brother Osborn, and I agree with his conclusion that this application for leave to appeal should be dismissed, substantially for the reasons which he has given.

The application, however, raises once again a difficult question frequently facing trial judges – that of the use which may or may not be made of evidence of uncharged acts, and it is on this point that I venture some general observations. That such evidence is led in cases of sexual misconduct reflects the reality that it is often very difficult for the complainant to identify particular dates and places of acts which may have been committed on a number of occasions, often some years previously, and in similar circumstances. It is therefore led in fairness to the complainant. It would seem that it was for this reason that the Victorian Parliament in 1991 created a new offence of sexual relationship with a child under the age of 16 years.[1] The present case does not concern such a relationship offence. It must, however, be acknowledged that such evidence creates an atmosphere of prejudice against the accused; it may be of such generality that it is difficult to challenge or refute; and there is always a potential that the jury may use it for an impermissible purpose.
[1]Crimes Act 1958 s.47A (amended 1997).

The authorities, therefore, make it plain that a trial judge in a case such as the

present must[2] give to the jury an affirmative direction and a negative direction as to the use they might make of the evidence of uncharged acts. The relevant features of this case, for present purposes, are that the accused was charged with sexual misconduct with a single complainant on occasions within specified periods ranging from 1…

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 BJC

Details

AGLC: R v BJC [2005] VSCA 154
Case: [2005] VSCA 154
Decision Date: 23 June 2005

CaseChat Overview and Summary

The case of R v BJC involves a defendant who faced five counts of indecent acts with a child under 16 and eleven counts of incest. The defendant appealed against his conviction on the grounds that the trial judge failed to adequately direct the jury in relation to the evidence of uncharged acts, that the judge erred in raising the issue of the complainant’s motive to lie, and that the judge did not require a full Longman warning. The appeal was heard in the Court of Appeal, which was tasked with determining the correctness of the trial judge’s directions and warnings given to the jury.

The primary legal issues in this case revolved around the admissibility and the appropriate warnings concerning evidence of uncharged acts. The court examined whether the judge provided a sufficient Longman warning, which is a direction to the jury that uncharged acts evidence is only to be considered if it is satisfied beyond reasonable doubt that the acts occurred, and whether the judge adequately warned the jury regarding the risks of convicting the defendant based on the evidence of uncharged acts. Additionally, the court considered whether the judge improperly influenced the jury by raising the complainant’s potential motive to lie.

The Court of Appeal concluded that the judge did not err in not giving a full Longman warning, as the substantial passage of time between the alleged incidents and the trial allowed for adequate testing of the evidence. The court found that the judge had given an adequate Kilby warning, which cautioned the jury about the dangers of convicting on uncharged acts evidence. Furthermore, the court held that the judge did not improperly raise the issue of the complainant’s motive to lie, as it was a legitimate line of inquiry to consider the credibility of the complainant’s testimony. Consequently, the appeal against conviction was dismissed, affirming the defendant's conviction on all counts.

Orders