R v Ellul - [2008] VSCA 106

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 304 of 2006

THE QUEEN
	v
SALVATORE ELLUL

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JUDGES:	MAXWELL ACJ, HANSEN and WILLIAMS AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 February 2008
DATE OF JUDGMENT:	13 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 106

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CRIMINAL LAW – Conviction – Application for leave to appeal – Sexual offences – Admissibility of evidence of uncharged acts given by complainant and by others – Relationship evidence – Probability reasoning – Underlying unity, common features of conduct – R v HG (2007) 171 A Crim R 55 explained – Crimes Act 1958, s 398A – Appeal allowed in part.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs M M Williams SC with Mr C B Boyce	Ms Angela Cannon, Solicitor for the Director of Public Prosecutions
The Applicant appeared in person

MAXWELL ACJ,
HANSEN AJA,
WILLIAMS AJA:

The applicant was tried in the County Court in September 2006 on a presentment that contained 10 counts, comprising unlawful and indecent assault (counts 1 and 5), gross indecency (counts 2, 4, 6, 8 and 10), and unlawful public exposure (counts 3, 7 and 9). Counts 2 and 3, 6 and 7, and 8 and 9 were alternative counts. The applicant was convicted on counts 1, 2 and 5. He was acquitted by direction on counts 3, 7, 8 and 9 and by the verdict of the jury on counts 4, 6 and 10. Following a plea in mitigation, on each count he was convicted and fined $200 with a stay of six months, ordered to undergo a forensic procedure under s 464ZF(2) of the Crimes Act 1958 and was declared a ‘registrable offender’, Class 2 with life reporting conditions for the purpose of the Sex Offenders Registration Act 2004.

The applicant now seeks leave to appeal against his conviction (but not the sentences imposed) on counts 1, 2 and 5. For reasons referred to below, the Crown concedes that the verdicts on counts 1 and 5 ought be quashed, but seeks to uphold the conviction on count 2.

The 10 counts concern the one female complainant, who was born on 11 August 1974 and was thus aged 32 at the time of the trial. At all relevant times the complainant lived with her parents and her brother (who died in November 2005) and sister (who died in March 1987) at their home in Parer Road, Airport West. The applicant, who lived next door, was born on 29 July 1933 and was thus aged 73 at the time of the trial.

In each count the offending is alleged to have occurred between dates, the earliest date being 11 August 1978 in count 1 and the latest being 10 August 1988 in count 10. The offence alleged in count 1 occurred when the complainant was aged about five or six; that in count 2 when she was aged about eight or nine; and that in count 5 on her ninth birthday. The latest event…

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 Ellul

Details

AGLC: R v Ellul [2008] VSCA 106
Case: [2008] VSCA 106
Decision Date: 13 June 2008

CaseChat Overview and Summary

The case of R v Ellul involved a defendant who had been convicted of various sexual offences and sought leave to appeal against that conviction. The court was required to consider whether the trial judge had erred in admitting certain evidence, particularly evidence of uncharged acts by the complainant and by others, and evidence of the relationship between the defendant and the complainant. The High Court of Australia was the forum for this appeal.

The primary legal issue before the court was whether the trial judge had applied the correct legal principles when determining the admissibility of evidence of uncharged acts and relationship evidence. The court had to consider whether the trial judge had erred in concluding that the evidence was relevant and necessary to establish a fact in issue or make a determination that was material to the proceedings. The court also had to consider whether the trial judge had given appropriate warnings to the jury about the potential for prejudice in admitting such evidence.

The court held that the trial judge had erred in admitting certain evidence of uncharged acts and relationship evidence. The court found that the trial judge had failed to properly apply the principles established in R v HG (2007) 171 A Crim R 55, which require that such evidence be relevant and necessary to establish a fact in issue or make a determination that is material to the proceedings. The court also found that the trial judge had not given appropriate warnings to the jury about the potential for prejudice in admitting such evidence. The court held that these errors had the potential to affect the outcome of the trial and therefore warranted the grant of leave to appeal. The appeal was allowed in part, and the matter was remitted to the trial court for a re-trial.

The court did not make any final orders in this appeal, as the matter was remitted to the trial court for a re-trial. However, the court's decision highlights the importance of properly applying the legal principles governing the admissibility of evidence of uncharged acts and relationship evidence in sexual offence cases. The court's decision also underscores the need for trial judges to give appropriate warnings to juries about the potential for prejudice in admitting such evidence.

Orders