R v Buckley

Case [2004] VSCA 185

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.141 of 2003

THE QUEEN

v.

GREGORY WILLIAM BUCKLEY

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JUDGES:

WINNEKE, P., CHARLES and NETTLE, JJ.A.

WHERE HELD:

MELBOURNE

DATE OF HEARING:

6 October 2004

DATE OF JUDGMENT:

14 October 2004

MEDIUM NEUTRAL CITATION:

[2004] VSCA 185

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Criminal law – Evidence – Cross-examination by prosecutor as to motives of other witnesses – lying – relevance of issues at trial – Propensity evidence – Whether rightly admitted – Sexual offences – Exercise of discretion under s.398A of the Crimes Act 1958 – Whether discretion miscarried – Confession – Failure to warn jury of need to be satisfied that confession was made and of its truth – Longman warning – Whether judge went too far in directing jury that in certain events they would be bound to convict – Similar fact evidence – Whether admissible to corroborate complainant’s testimony as to offences charged or as to uncharged acts going to relationship or context – Directions concerning such evidence – Failure to warn jury of the risks of collusion and innocent infection – Criminal procedure – Joinder of counts – Sexual offences – Several complainants – Separate trials  - Discretion to order separate trials - Principles guiding exercise of discretion – Juries – Whether jury affected by contents of suppression order attached to the door of court - Crimes Act 1958, ss.372 (3AA) and (3AB) and 398A.

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APPEARANCES: Counsel Solicitors
For the Crown Mrs. C.M. Quin Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant Mr. M.J. Croucher Leanne Warren & Associates

WINNEKE, P.:

  1. For the reasons given by Nettle, J.A., I agree that the application for leave to appeal against conviction should be allowed;  and that a new trial be had.

CHARLES, J.A.:

  1. Having had the advantage of reading the reasons prepared by Nettle, J.A., I agree with his Honour that the appeal against conviction should be allowed, and that a new trial should be had.

NETTLE, J.A.:

  1. On 28 April 2003 the applicant was arraigned before the County Court at Sale on Presentment P-01461581 on 23 counts of sexual penetration with a child under the age of 16 years and indecent act with a child under the age of 16 years.  Counts 1 and 2 related to a complainant whom I shall call “JG” and the remaining 21 counts to another complainant whom I shall call “KD”.  Thereafter, upon the application of counsel for the applicant the judge severed Counts 1 and 2 and ordered that the trial of Counts 3 to 23 proceed the next day.  The Crown filed an amended presentment No P-01461581-2 in which were included only the counts relating to KD.

  1. Prior to the empanelment of the jury the prosecutor announced that he proposed to call JG to give evidence that at or about the time of the alleged offences against KD, the accused had told JG that his relationship with his then wife, Michelle Buckley, was unhappy; that the applicant had also told JG of…

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R v Buckley [2004] VSCA 185
Case
[2004] VSCA 185
Decision Date

CaseChat Overview and Summary

In the case of R v Buckley, the defendant was charged with multiple sexual offences. The court had to decide on the admissibility of certain evidence, the exercise of discretion under s.398A of the Crimes Act 1958, the need for a Longman warning regarding the alleged confession, and the effect of similar fact evidence on the jury. The court also had to consider whether the judge properly directed the jury on the weight of the evidence and the risks of collusion and innocent infection. The case involved several complainants, and the court had to determine the appropriate exercise of discretion in ordering separate trials.

The court found that the judge did not misapply s.398A by substituting the statutory test with one of his own making. The court held that the judge's description of the statutory requirements in terms of balance was an appropriate method of describing the test. The court also found that the alleged admission did not necessarily relate to any of the offences charged and that the judge should have given a clear Burns direction to the jury. The court held that the witness's expression of opinion as to the defendant's guilt should not have been allowed, and that the judge should have warned the jury of the risks of collusion and innocent infection.

The court found that the judge did not go too far in directing the jury that in certain events they would be bound to convict. The court held that the similar fact evidence was admissible to corroborate the complainant's testimony as to the offences charged or as to uncharged acts going to the relationship or context. The court also held that the judge's discretion to order separate trials was exercised properly, and that the jury was not affected by the contents of the suppression order attached to the door of the court.

The court ordered that the convictions be quashed and that the matter be remitted to the Court of Appeal for a re-trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The second submission is that the judge erred in the application of s.398A by substituting for the test prescribed by the statute[17] one which his Honour described in terms of being unable to “see any basis on balance” for exclusion of the evidence. I do not think that submission to be persuasive. The judge is a very experienced criminal trial judge. The probability that he overlooked the provisions of s.398A is negligible. The fact that his Honour did not mention the section in terms is unsurprising. And the fact that he spoke of its requirements in terms of balance is really to be expected. I take his Honour’s words to be a compendious and apposite method of describing the statutory test.[17]Section 398A provides as follows:“398A. Admissibility of propensity evidence(1)This section applies to proceedings for an indictable or summary offence.(2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.(3) The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of evidence referred to in sub-section (2).(4) Nothing in this section prevents a court taking into account the possibility of a reasonable explanation consistent with the innocence of the person charged with an offence when considering the weight of the evidence or the credibility of a witness. (5) This section has effect despite any rule of law to the contrary.” The third submission is that in as much as the alleged admission ex facie related to more than one female student and was said to have been uttered in response to an allegation concerning more than one female student and more than one occasion, one could not be confident that the alleged admission related to any and if so which of the offences with which the applicant stood charged. The judge directed the jury as follows: As can be seen, the judge did not in those directions expressly caution the jury that they needed to be satisfied that the words which the applicant was alleged to have used were intended as an admission that he had committed the acts alleged against KD. Given that the alleged admission was a major plank in the Crown case and that there was room for different views about the exact effect of what the applicant was alleged to have said, I consider that it was necessary for the judge to give the jury a clear Burns direction.[18][18]R. v. Burns (1975) 132 C.L.R. 258 at 261. The fourth submission is that such problems as may have been implicit in the reference to a plurality of female students were made explicit when the prosecutor put to the applicant that the effect of the alleged admission was “an admission of guilt in relation to sexual impropriety with your female students”. So much is obvious. The fifth submission is that Michelle Buckley ought never to have been allowed to express the opinion that she believed that the applicant had done it. Plainly that is so, even if it is to be doubted that Michelle Buckley’s expression of opinion was any more prejudicial to the applicant than was her evidence, which was admissible, that she said to him that she believed that he did it. The expression of opinion as such ought to have been excluded and I add that a good deal more of what the witness was allowed to express as her account of the facts, particularly after she was cross-questioned by the prosecutor following her initial failure to say unprompted anything about the admission, was as much constituted of expressions of belief and opinion as by any recollection of events which may have occurred. In my view that too should not have been allowed to occur.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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