R v EF

Case [2008] VSCA 213 31 October 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 287 of 2007

THE QUEEN
	v
EF

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JUDGES:	NETTLE and WEINBERG JJA and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 September 2008
DATE OF JUDGMENT:	31 October 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 213

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CRIMINAL LAW – Application for leave to appeal – Convictions for indecent assaults upon, and acts of sexual penetration with, child under 16 – Whether trial judge erred in allowing certain evidence of an ‘uncharged act’ to go to jury as propensity evidence – Whether requirements of s 398A of Crimes Act 1958 met – Whether trial judge erred in allowing evidence of recent complaint to be led – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M C Kowalski	McGregor Barristers and Solicitors

NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of Weinberg JA and I agree with his Honour, substantially for the reasons that he gives, that the application for leave to appeal against conviction should be refused.

As to the first ground of appeal, however, I add that this court has recently considered the operation of s 398A of the Crimes Act 1958 in R v Sadler,[1] and there sought to reconcile the operation of the section with the recent observations of some of the members of the High Court in The Queen v HML.[2] The court concluded that, pending further guidance from the High Court, where evidence of uncharged sexual acts is admitted under s 398A, a trial judge should ordinarily assume that there is a real risk of the jury using that evidence as a sufficiently important step in their process of reasoning to guilt to warrant particular mention and, therefore, that the judge should ordinarily direct the jury that they should not conclude from the evidence of uncharged acts that the accused had a sexual interest in the complainant unless they are satisfied of that fact beyond reasonable doubt.[3]
[1][2008] VSCA 198, esp. at [48].
[2][2008] HCA 16; (2008) 245 ALR 204; see [2008] VSCA 198, [49]–[60].
[3][2008] VSCA 198, [65].

As Weinberg JA notes in his reasons, in this case there was no exception to the judge’s directions concerning the use of evidence of uncharged acts and there is no ground of appeal concerning those directions. But lest it be thought that the applicant may thereby have been deprived of a chance of acquittal, it should also be noted that the judge expressly directed the jury that they could not draw an inference as to the existence of an element of the offence charged, or of the guilt of the accused, unless satisfied beyond reasonable doubt of any facts necessary to the process of reasoning involved; and that it was the only reasonable inference to be drawn from the facts.…

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 EF

Details

AGLC: R v EF [2008] VSCA 213
Case: [2008] VSCA 213
Decision Date: 31 October 2008

CaseChat Overview and Summary

In the matter of R v EF, the respondent appealed against convictions for indecent assaults upon, and acts of sexual penetration with, a child under 16 years of age. The trial was held in the County Court of Victoria, and the appeal was heard by the Court of Appeal. The central issue before the Court was whether the trial judge had erred in admitting evidence of an uncharged act as propensity evidence and whether the requirements of section 398A of the Crimes Act 1958 were satisfied. Additionally, the Court needed to determine if the trial judge erred in permitting evidence of a recent complaint to be led.

The Court of Appeal found that the trial judge did not err in admitting evidence of the uncharged act. The uncharged act was closely related to the charged acts, and its probative value outweighed any prejudicial effect. The trial judge had properly considered the criteria under section 398A of the Crimes Act 1958, ensuring the evidence was relevant and necessary for the jury to understand the context of the charged offences. The uncharged act provided a necessary background for the jury to assess the credibility of the child’s allegations and the respondent’s defence. The Court also upheld the trial judge's decision to allow evidence of the recent complaint, finding that it was relevant to the credibility of the child and the respondent’s character for truthfulness.

Consequently, the Court of Appeal dismissed the appeal, refusing the respondent leave to appeal against the convictions. The Court found that the trial judge had correctly applied the law in admitting the contested evidence, and no miscarriage of justice had occurred. The evidence played a critical role in the jury's understanding of the context and circumstances surrounding the charged offences. The Court held that the trial judge's decisions were both reasonable and in accordance with the statutory requirements. The appeal was thus unsuccessful, and the convictions were affirmed.

Orders