R v Crosbie - [2005] VSCA 247

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 47 of 2004

THE QUEEN
	v.
SHANE MATTHEW CROSBIE

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JUDGES:	CHERNOV and NETTLE, JJ.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 September 2005
DATE OF JUDGMENT:	24 October 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 247

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Criminal law – Rape - Indecent assault of child under 16 years - Stalking - Taking away a child – Whether police record of interview concerning stalking can be properly used when considering sexual offences – Multiple counts – One complainant – No uncharged acts alleged – Separate consideration direction given – No propensity warning required – Prior inconsistent statements – Whether jury adequately directed as to use of prior inconsistent statements – Lie – Consciousness of guilt – Crown did not rely on lie as implied admission of guilt – Edwards-type direction not required – Application for leave to appeal against conviction refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs. C.M. Quin	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mrs. J. Dixon	Victoria Legal Aid

CHERNOV, J.A.:

On 28 January 2004, after a trial in the County Court at Melbourne that lasted seven sitting days, the applicant, who is now aged 41 years, was convicted by a jury of the following ten counts, to which he had pleaded not guilty, namely, two counts of committing an indecent act with a child under 16 years,[1] six counts of rape,[2] one count of stalking[3] and one count of taking away a child.[4] The presentment also preferred against him, by way of alternative to the six counts of rape, six counts of sexual penetration of a child under 16.[5] In the event, no verdict was taken in respect of the latter counts given the jury’s finding of guilt on each rape count. The maximum custodial penalties for the respective offences are: performing an indecent act with a child under 16 years of age and stalking - ten years; rape - 25 years; and taking away a child - five years. On 29 January 2004, the learned sentencing judge heard a plea for leniency made on the applicant’s behalf, in the course of which he admitted 16 prior convictions from seven Magistrates’ Court appearances, including two convictions in 1993 for taking part in an act of sexual penetration with a child aged under 10 years. On 5 March 2004, his Honour imposed a total effective sentence of nine years and nine months’ imprisonment and ordered that the applicant serve a minimum term of seven years’ imprisonment before he could be eligible for parole.
[1]Counts 1 and 4.
[2]Counts 2, 5, 7, 9, 11 and 13.
[3]Count 15.
[4]Count 16.
[5]Counts 3, 6, 8, 10, 12 and 14.

By notice filed on 19 March 2004, the applicant seeks leave to appeal against the convictions. The sole ground stated in the notice is that the jury’s verdicts are unsafe and unsatisfactory, particularly having regard to the inconsistent evidence given by the complainant and…

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 Crosbie

Details

AGLC: R v Crosbie [2005] VSCA 247
Case: [2005] VSCA 247
Decision Date: 24 October 2005

CaseChat Overview and Summary

The case of R v Crosbie involved the appellant, Crosbie, who faced multiple charges including rape, indecent assault of a child under 16 years, stalking, and taking away a child. The matter was heard in the Court of Criminal Appeal, where Crosbie sought to appeal against his conviction. The primary issues before the court were whether the police record of an interview concerning the stalking charge could be used in the context of the sexual offences, and if the jury was adequately directed in the use of prior inconsistent statements made by the complainant.

The court examined the admissibility of the police record of the interview concerning the stalking charge, considering it in the context of the other sexual offences. The court found that, as the stalking charge involved the same complainant and no uncharged acts were alleged, the evidence was properly admitted. Furthermore, the court ruled that a separate consideration direction was appropriate in this case due to the nature of the charges. The court held that no propensity warning was required, as the evidence was not being used to establish a propensity to commit offences of a particular kind. Regarding the use of prior inconsistent statements, the court found that the jury was adequately directed on their use, particularly since the Crown did not rely on the inconsistency as an implied admission of guilt, thus no Edwards-type direction was necessary.

The Court of Criminal Appeal held that the trial judge had correctly managed the evidence and provided appropriate directions to the jury. Consequently, the application for leave to appeal against conviction was refused. The court was satisfied that the trial had been conducted fairly and that the jury's verdict was properly based on the evidence presented.

Orders