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R v Davis

R v Davis

Case [2007] VSCA 276 27 November 2007

Criminal Liability

Appeal

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 320 of 2006
v
EDWARD DAVIS
THE QUEEN	No. 32 of 2006
v
EDWARD DAVIS

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JUDGES:	BUCHANAN JA and COLDREY and CURTAIN AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 November 2007
DATE OF JUDGMENT:	27 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 276

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Criminal law – Sexual offences – Complaint – Directions to jury sufficient – Cross-examination of accused as to whether Crown witnesses lied impermissible. Appeal allowed.

Criminal law – Attempt to pervert the course of justice – Evidence led by playing video tapes – Evidence Act 1958 (No 6246), s 37B. Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr T Kassimatis	Victoria Legal Aid

BUCHANAN JA:

The applicant was tried in the County Court and found guilty on 20 counts of committing an indecent act with or in the presence of a child under the age of 16 years and two counts of taking part in an act of sexual penetration with a child under the age of 16 years. The applicant was acquitted on five counts of committing an indecent act with or in the presence of a child under the age of 16 years. After a plea, a total effective sentence of seven years' imprisonment, with a minimum term of four years and six months' imprisonment, was imposed upon the applicant.

The applicant seeks leave to appeal against the convictions and the sentence.

The offences were alleged to have occurred between 2002 and 2004, when the applicant was between the ages of 30 and 32 years and the complainants, four boys, were aged between nine and fourteen years.

The complainants were the principal Crown witnesses. DP, who was then aged eleven years, said that he met the applicant in about June 2002 at McDonald's restaurant in Flemington. The applicant and DP struck up an acquaintance and would talk together and smoke cigarettes. On one occasion the applicant took DP to the applicant's residence situated above a shop a short distance from McDonald's. The applicant asked DP if he wanted to earn money by giving the applicant a full body massage for between $20 and $50. DP agreed, and went upstairs with the applicant to a bedroom, where they both took off their clothes and got on to the bed. DP massaged the upper shoulders, back and legs of the applicant for some 20 minutes. The applicant offered DP $50 to masturbate him. DP did not reply. The applicant asked DP if he could massage him. DP refused. The applicant paid DP $30. DP said that he went to the applicant's residence about ten times after that, and on each occasion the applicant gave him a full body massage and paid him. On the last occasion, as DP massaged the applicant, the applicant offered him $200 to masturbate the applicant. DP agreed. He saw the applicant put $200…

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 Davis

Details

AGLC: R v Davis [2007] VSCA 276
Case: [2007] VSCA 276
Decision Date: 27 November 2007

CaseChat Overview and Summary

In the case of R v Davis, the appellant was convicted of various sexual offences and an attempted perverting the course of justice. The case was heard in the Supreme Court of Victoria, which was then appealed to the Court of Appeal. The appellant sought to challenge the conviction on several grounds, including the sufficiency of the directions given to the jury and the admissibility of certain evidence.

The court was required to decide whether the trial judge’s directions to the jury were adequate in the context of the appellant’s complaint. It was also necessary to determine if the trial judge erred in permitting cross-examination of the appellant concerning whether Crown witnesses had lied. Additionally, the court had to consider whether the trial judge correctly admitted evidence by playing video tapes, under section 37B of the Evidence Act 1958.

The Court of Appeal found that the trial judge did not err in giving directions to the jury. The judge's directions were held to be sufficient for the jury to understand the nature of the appellant's complaint. However, the court held that the trial judge erred in allowing cross-examination about whether the Crown witnesses had lied, which was impermissible. The court also found that the admission of the video tapes was incorrect under section 37B of the Evidence Act 1958. Consequently, the appeal was allowed, and the convictions were quashed. The court emphasised that the admission of video evidence in criminal trials must strictly adhere to the provisions of the Evidence Act.

Orders