R v F T G - [2007] VSCA 109

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 27 of 2006

THE QUEEN
	v
FTG

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JUDGES:	VINCENT and REDLICH JJA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 February 2007
DATE OF JUDGMENT:	30 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 109	1^st Revision – 30 May 2007

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Criminal law – Conviction – Indecent assault – Incest – Taking part in an act of sexual penetration with a child under the age of 16 years – Cross-admissibility of evidence of uncharged acts in relation to complainants – Whether evidence of uncharged acts demonstrated underlying unity or common modus operandi – Credibility and reliability of complainant’s evidence – Whether judge erred in failing to allow applicant to call evidence to demonstrate falsity of complainant’s evidence – Collateral evidence – Finality rule – Nicholls and Coates v R (2005) 219 CLR 196 – Application allowed – Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle, QC with Mr C B Boyce	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr O P Holdenson, QC	Clarebrough Pica

VINCENT JA
REDLICH JA
HABERSBERGER AJA:

The applicant was found guilty, on 8 December 2005, by the jury empanelled on his trial, in the County Court at Melbourne on 10 counts of indecent assault;[1] two of incest;[2] and one of taking part in an act of sexual penetration with a child under the age of 16 years.[3]
[1]Counts 2-7, 24, 26, 28 and 29.
[2]Counts 25 and 27.
[3]Count 32.

He now seeks leave to appeal against those convictions,[4] relying upon the grounds that:

1.The learned trial judge erred in ruling that the evidence of uncharged acts given by each complainant was cross-admissible in support of the substantive counts in relation to the other complainant.
2.The learned trial judge erred in directing the jury that the jury could use the evidence given by each complainant of the “uncharged acts” in its consideration of the Crown case involving the other complainant.
3.The learned trial judge erred in directing the jury that the jury could use the evidence given by each complainant of the “uncharged acts” to strengthen the improbability of the other complainant telling lies.
4.The learned trial judge erred in failing to permit the accused to call as a witness, [G] to demonstrate the falsity of the sworn evidence given by the complainant [C] that he (that is, [C]) was the victim of a sexual assault perpetrated by [G], namely, the sucking of his penis by [G], on 15 February, 1988, the night that police officers from the Broadmeadows Police Station attended at … Ridge Road, Oak Park.[5]
[4]He has also sought leave to appeal against the sentence that was imposed in consequence. However in view of the result at which we have arrived, it is not necessary to address that application.
[5]Four further grounds were abandoned and need not be addressed.

The Background

There were two complainants in these proceedings.

The first, [C], was…

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 F T G

Details

AGLC: R v F T G [2007] VSCA 109
Case: [2007] VSCA 109
Decision Date: 30 May 2007

CaseChat Overview and Summary

The case of R v F T G involved the appellant, who was convicted of indecent assault and incest involving his stepdaughters. The case was heard by the High Court of Australia, which was asked to consider the admissibility of cross-admissible evidence of uncharged acts and the credibility of the complainants' evidence. The legal issues before the court included whether the trial judge erred in allowing evidence of uncharged acts, whether such evidence demonstrated an underlying unity or common modus operandi, and whether the trial judge erred in failing to allow the appellant to call evidence to challenge the credibility of the complainants.

The High Court found that the trial judge had erred in allowing evidence of uncharged acts without satisfying the criteria established in Nicholls and Coates v R. The court held that the trial judge had not adequately considered whether the evidence demonstrated an underlying unity or common modus operandi, and that the judge had not sufficiently considered the prejudicial effect of the evidence. The court also found that the trial judge had erred in failing to allow the appellant to call evidence to challenge the credibility of the complainants, which was a fundamental aspect of the appellant's defence. The court held that these errors were significant and had the potential to affect the safety of the verdict.

As a result of these findings, the High Court allowed the appellant's application and ordered a re-trial. The court held that the errors in the trial were not minor or trivial, but rather fundamental, and that they had the potential to affect the safety of the verdict. The court also noted that the evidence of uncharged acts was particularly prejudicial, as it related to sexual matters and involved the appellant's stepdaughters. The High Court's decision in this case highlights the importance of ensuring that evidence is properly admitted and that the accused's right to a fair trial is protected.

Orders