R v DCC

Case [2004] VSCA 230 15 December 2004

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 45 of 2003

THE QUEEN
	v.
DCC

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JUDGES:	CALLAWAY, EAMES and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 November 2004
DATE OF JUDGMENT:	15 December 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 230

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Criminal law – Evidence – Sexual offences – Three step-daughter complainants – Similar fact evidence - Propensity evidence – Whether application of propensity direction confined to use of uncharged acts only, and not to use of other charged acts - Whether propensity direction must use the phrase “kind of person who is likely to commit the charged offence” - Longman warning – Whether Longman warning made conditional on absence of confirmatory evidence – Address by prosecutor – Whether prosecutor’s comments akin to asking “Why would they lie?” – Adequacy of directions as to collusion and fabrication – Whether consent direction was appropriately given: s.37 CrimesAct 1958 – Adequacy of direction as to absence of complaint. Crimes Act 1958, ss. 44(1), 52(2) (as then in effect).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C. Quin	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr T. Kassimatis	Balmer & Associates Pty

CALLAWAY, J.A.:

I have had the advantage of reading in draft the reasons for judgment prepared by Eames, J.A. Subject to the observations that follow, I agree in them and in the disposition of this application that his Honour proposes.

The question whether a propensity warning is required may arise in at least four different situations. First, evidence of uncharged acts may be admitted as relationship evidence. The authorities, which are numerous, include R. v. Dolan[1], R. v. Beserick[2], R. v. Grech[3] and R. v. Loguancio[4]. The direction that should ordinarily be given is well settled. It has three components, which were lettered (a) and (b)(i) and (ii) in the following passage in my judgment in R. v. Grech[5], in which Phillips, C.J. and Smith, A.J.A. concurred:
[1](1992) 58 S.A.S.R. 501 at 503.
[2](1993) 30 N.S.W.L.R. 510.
[3][1997] 2 V.R. 609.
[4](2000) 1 V.R. 198.
[5]At 614.

“In my opinion the jury should have been told that –
(a) the evidence of extraneous sexual conduct was admitted solely to establish the relationship between the applicant and his daughter as part of the context and setting in which the offences charged were alleged to have occurred; and
(b) even if the jury accepted that evidence or part of it –
(i)the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; and
(ii) they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged.

The foregoing summary is not intended as a model direction but as a guide to the substance of what was required in this case.”

Point (b)(ii) in that…

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 DCC

Details

AGLC: R v DCC [2004] VSCA 230
Case: [2004] VSCA 230
Decision Date: 15 December 2004

CaseChat Overview and Summary

The respondents, the Crown, appealed against the decision of the Court of Appeal of the Supreme Court of Victoria (Court of Appeal) which quashed the convictions of the appellant, DCC, on the basis that the trial judge erred in his directions to the jury concerning the use of evidence of similar fact, the Longman warning, and the adequacy of the directions concerning consent and the absence of a complaint. The appellant had been convicted on a number of charges relating to sexual offences against his three step-daughters. The Court of Appeal held that the trial judge had erred in his direction to the jury that evidence of similar fact could only be used to show propensity. The Court of Appeal held that the trial judge should have directed the jury that evidence of similar fact could be used for other purposes as well as to show propensity. The Court of Appeal held that the trial judge had erred in his Longman warning by not making it conditional on the absence of confirmatory evidence. The Court of Appeal held that the prosecutor’s comments during the address were akin to asking “Why would they lie?” and were an improper form of comment on the failure of the complainants to give evidence. The Court of Appeal held that the trial judge had erred in his direction to the jury concerning collusion and fabrication, and that the direction concerning consent was inadequate. The Court of Appeal held that the direction concerning the absence of a complaint was adequate.

The legal issues in this case were whether the trial judge erred in his directions to the jury concerning the use of evidence of similar fact, the Longman warning, and the adequacy of the directions concerning consent and the absence of a complaint. The court considered whether the trial judge should have directed the jury that evidence of similar fact could be used for other purposes as well as to show propensity. The court also considered whether the trial judge should have made the Longman warning conditional on the absence of confirmatory evidence. The court further considered whether the prosecutor’s comments during the address were an improper form of comment on the failure of the complainants to give evidence. Finally, the court considered whether the trial judge had given an adequate direction to the jury concerning collusion and fabrication, and whether the direction concerning consent was adequate.

The court held that the trial judge had erred in his direction to the jury that evidence of similar fact could only be used to show propensity. The court held that the trial judge should have directed the jury that evidence of similar fact could be used for other purposes as well as to show propensity. The court held that the trial judge had erred in his Longman warning by not making it conditional on the absence of confirmatory evidence. The court held that the prosecutor’s comments during the address were an improper form of comment on the failure of the complainants to give evidence. The court held that the trial judge had erred in his direction to the jury concerning collusion and fabrication, and that the direction concerning consent was inadequate. The court held that the direction concerning the absence of a complaint was adequate.

The final orders of the court were that the appeal be allowed, the convictions be quashed, and the matter be remitted to the County Court for a new trial.

Orders