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R v Cupid

R v Cupid

Case [2004] VSCA 183 8 October 2004

Sexual Offences

Cross-Examination

Propensity Warning

Evidence of Young Children

Statutory Reference

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 301 of 2003

THE QUEEN
	v.
ROBERT JOHN DAVID CUPID

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JUDGES:	ORMISTON, CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	3 and 10 August 2004
DATE OF JUDGMENT:	8 October 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 183	1^st Revision – 12 November 2004

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Criminal law – Sexual offences against a child – Complainant asking in cross-examination, “Why would I lie?” – That evidence relied on by prosecutor in final address – Whether Palmer direction [Palmer v. R. (1998) 193 C.L.R. 1] required – Whether propensity warning required in relation to applicant’s having tickled the complainant and other children – Whether permissible to ask one witness whether he or she thinks another witness is lying – Evidence of young children – Crimes Act 1958, s.400.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr S. Gillespie-Jones Mr B. Lai	Paul A. Vale & Assoc.

ORMISTON, J.A.:

Having had the benefit of reading the judgment of Callaway, J.A. in draft form, I confess that at first I was inclined to disagree with his conclusions as to the principal ground argued and to have dismissed the application. Having written a judgment to that effect, I have now reached the conclusion, having had the benefit of reading also the judgment of Buchanan, J.A., that I was too hasty in concluding that there was no potential miscarriage of justice. I now agree in the conclusions reached by the other members of the Court, although with some reluctance, as the errors noted may well not have had the effect on the minds of the jury in the sense that authority lays down. The case involves the application of what has come to be known as the rule in Palmer v. The Queen[1] which has provided difficulties in a variety of ways since it was handed down over six years ago. After reading the transcript a number of times I was inclined to think that the application of the principles described in that case had little effect on the outcome of the present trial but, nevertheless, more careful consideration shows that one aspect raised by prosecuting counsel’s address and the judge’s failure to deal with the inference which counsel thereby left open to the jury was sufficient to lead to a possible miscarriage of justice.
[1](1998) 193 C.L.R. 1.

I should, however, state my reasons in a little more detail. The judgment of Callaway, J.A. sufficiently sets out the facts and circumstances leading to these applications. There were some further details which originally I thought would be necessary to add but, having thought about the matter further, they are merely aspects of the trial which pointed to a conclusion that the jury may not have thought much about the question “What motive would the complainant have had to lie?”. I may well have been right but my conclusion would have…

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 Cupid

Details

AGLC: R v Cupid [2004] VSCA 183
Case: [2004] VSCA 183
Decision Date: 8 October 2004

CaseChat Overview and Summary

The case of R v Cupid involved the applicant, Cupid, who was charged with various sexual offences against a child. The matter was heard in the County Court of Victoria. The primary dispute revolved around the admissibility and impact of certain questions and evidence presented during the trial, particularly regarding the complainant's credibility and the applicant's propensity to engage in similar conduct.

The legal issues before the court included whether a Palmer direction was required in relation to a question posed by the complainant during cross-examination, where she asked, “Why would I lie?” Additionally, the court needed to determine if a propensity warning was necessary concerning the applicant's past conduct of tickling the complainant and other children. Another issue was whether it was permissible for one witness to be asked if they thought another witness was lying.

The court held that a Palmer direction was not required, as the complainant’s question did not insinuate that the applicant had a propensity to commit the offence. The court found that the question was more of a rhetorical nature, aimed at reinforcing the complainant’s credibility rather than suggesting any propensity. Regarding the propensity warning, the court ruled that it was not necessary because the evidence of tickling did not establish a pattern of behaviour that could be used to suggest the applicant’s propensity to commit sexual offences. Finally, the court determined that it was not permissible to ask one witness if they thought another witness was lying, as it could unfairly influence the jury’s perception of the witness’s credibility.

The final orders of the court involved the quashing of the applicant's convictions and the ordering of a retrial. This decision was based on the erroneous admission of evidence and the failure to provide appropriate directions and warnings, which could have materially affected the outcome of the trial.

Orders