R v ERJ - [2010] VSCA 61

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 723 of 2008

THE QUEEN
	v
ERJ

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JUDGES	REDLICH and HARPER JJA and WILLIAMS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 November 2009
DATE OF JUDGMENT	29 March 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 61
JUDGMENT APPEALED FROM	The Queen v ERJ (Unreported, County Court of Victoria (Judge Leckie, 27 June 2008)

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CRIMINAL LAW – Refusal to allow cross-examination as to sexual relationship – s 37A Evidence Act 1958 – Whether evidence had substantial relevance – Whether exclusion of such evidence unfairly bolstered complainant’s credibility – Delay in making complaint – Delayed recognition by complainant of wrongfulness of acts – s 61(b)(1) Crimes Act 1958 – Obligation to inform jury ‘that there might be good reasons’ for delay – Whether verdicts logically inconsistent – MFA v The Queen (2002) 213 CLR 606 applied – Whether verdicts unsafe.

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Appearances:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr P G Priest QC with Mr M J Croucher	Power & Bennett Lawyers

REDLICH JA:

Following a trial in the County Court the applicant was convicted of two counts of an indecent act with a child under 16 and nine counts of incest. He was acquitted on one count of indecent act with a child under 16 and three counts of incest. The complainant on each count was his daughter. The applicant was ordered to serve a total effective sentence of 11 years and four months imprisonment with a non-parole period of seven years and six months fixed.

The applicant now seeks leave to appeal against conviction and sentence. The conviction appeal is brought on two grounds. First, that the verdicts were unsafe and unsatisfactory. Second, that the trial judge erred by refusing to allow his counsel to cross-examine the complainant or introduce evidence that related to the complainant’s previous sexual history.

It was the prosecution case that the applicant commenced sexually assaulting his daughter when she was approximately 12 years of age. This conduct escalated to intercourse when she was approximately 13 and continued over a period of five years between January 2001 and October 2006. It ceased when the complainant moved out of the family home.

At trial, the prosecution relied solely on the evidence of the complainant. The applicant’s defence involved a denial that any of the alleged conduct had occurred. It will be necessary to refer to the evidence on each count in some detail in dealing with ground 1.

Refusal to allow cross-examination as to sexual relationship

Ground 2 is in these terms:

The trial judge erred in refusing to allow counsel for the applicant [to] question the complainant and the complainant’s [boyfriend] as to whether:
(a) they had a sexual relationship;
(b)the applicant was aware that they had sexual relations at the applicant’s premises;
(c)the complainant had a ‘pregnancy scare’ as a result of her sexual relationship with her boyfriend.

At the trial,…

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 ERJ

Details

AGLC: R v ERJ [2010] VSCA 61
Case: [2010] VSCA 61
Decision Date: 29 March 2010

CaseChat Overview and Summary

The appellant, ERJ, was charged with sexual offences against a child, the victim, and the case was heard in the Supreme Court of Victoria. The dispute centred around the admissibility of certain evidence related to the complainant's sexual relationship with a third party, as well as the delayed reporting of the alleged offences. The court was required to determine whether the exclusion of this evidence contravened the complainant's credibility and whether the jury should have been directed to consider the potential reasons for the delay in reporting.

The legal issues before the court were whether the evidence of the sexual relationship had substantial relevance to the case and whether its exclusion unfairly bolstered the credibility of the complainant. Additionally, the court had to consider whether the jury should have been instructed to consider the reasons for the delay in making the complaint, and if the verdicts reached were logically inconsistent and unsafe.

The court held that the exclusion of the evidence pertaining to the sexual relationship did not unfairly bolster the complainant's credibility, as it was not directly relevant to the alleged offences. Furthermore, the court found that the trial judge had correctly assessed the potential prejudice of such evidence and determined that its probative value was outweighed by the risk of unfair prejudice. Regarding the delay in reporting, the court held that the trial judge had not erred in failing to instruct the jury on the reasons for the delay, as the delay was not a significant factor in the case. The verdicts were found to be logically consistent, and the appeal was ultimately dismissed.

No specific orders were made by the court beyond dismissing the appeal.

Orders