R v CHS - [2006] VSCA 19

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 222 of 2004

THE QUEEN
	v.
CHS

---

JUDGES:	WARREN, C.J., ORMISTON AND EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2005
DATE OF JUDGMENT:	21 February 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 19

---

CRIMINAL LAW — Leave to Appeal against conviction and sentence — Applicant convicted of 11 counts of sexual offences committed against step-daughter at trial — Appeal allowed — New trial ordered.

EVIDENCE — Propensity evidence — Cross-admissibility of evidence between counts — Crimes Act 1958, s.398A — Directions to the jury by the trial judge — Whether directions appropriate.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman S.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr G.F. Meredith	Dowling McGregor Thomas

WARREN, CJ:

1 The applicant seeks leave to appeal conviction and sentence on a number of sex related offences concerning his step-daughter, TG, when aged between 11 and about 15 years. The applicant, born on 21 April 1964, was aged between 33 and 38 at the time of the various offences.

2 On 20 August 2004 in the County Court sitting at Ballarat, a jury returned a verdict of guilty on 11 counts (counts 1, 2, 3, 4, 5, 6, 9, 13, 16, 17 and 18) and a verdict of not guilty on counts 7, 8, 11, 12, 14 and 15. As for the remaining count, Count 10, during the trial, the prosecutor conceded that there was no evidence to support it. The trial judge therefore directed the jury to return a verdict of not guilty with respect to Count 10.

3 The relevant counts were:

Count 1

Between 1 January 1998 and 31 December 1998 committing an indecent act with or in the presence of a child under 16.

Count 2

Between 2 January 1999 and 31 December 1999 wilfully committing an indecent act with or in the presence of a child under the age of 16.

Count 3

Between 2 January 1999 and 31 December 1999 attempting to take part in an act of sexual penetration with his stepchild.

Count 4

Between 1 July 2000 and 31 December 2000 committing an indecent act with or in the presence of a child under 16.

Count 5

Between 1 July 2000 and 31 December 2000 committing an indecent act with or in the presence of a child under 16.

Count 6

Between 1 January 2001 and 31 December 2001 committing an indecent act with or in the presence of a child under 16.

Count 7

Between 1 January 1999 and 31 December 2001 committing an indecent act with or in the presence of a child under the age of 16.

Count 8

Between 1 January 1999 and 31 December 2001 committing an indecent act with or in the presence of a child under the age of 16.

Count 9

Between 1 January 2001 and 31 December 2002 committing an indecent act with or in the presence of a…

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 CHS

Details

AGLC: R v CHS [2006] VSCA 19
Case: [2006] VSCA 19
Decision Date: 21 February 2006

CaseChat Overview and Summary

The applicant in this case was convicted of 11 counts of sexual offences against his step-daughter at trial. The case was heard in the Court of Appeal, which was tasked with considering the applicant's application for leave to appeal against both his conviction and sentence. The applicant's primary contention was that the trial judge had erred in the directions given to the jury regarding the admissibility of propensity evidence under the Crimes Act 1958, section 398A. Specifically, the applicant argued that the trial judge should have excluded certain evidence on the grounds that it was not cross-admissible between the counts.

The court was required to determine whether the trial judge's directions to the jury regarding the admissibility of propensity evidence were appropriate. This involved an analysis of the relevant statutory provisions and case law, as well as an assessment of the impact of the allegedly inadmissible evidence on the fairness of the trial. The court also had to consider whether the errors, if any, were so significant as to warrant a new trial.

The court found that the trial judge had indeed erred in his directions to the jury, as the evidence in question was not cross-admissible between the counts as required by section 398A of the Crimes Act 1958. The court held that this error was of such a nature that it affected the outcome of the trial, and thus warranted a new trial. The appeal was allowed, and the conviction and sentence were quashed. The court ordered a new trial to be held.

No further orders were made.

Orders