R v Fotis - [2004] VSCA 212

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.132 of 2003

THE QUEEN

CHRISTOPHER FOTIS

---

JUDGES:	CHARLES, CHERNOV and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 November 2004
DATE OF JUDGMENT:	22 November 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 212

---

CRIMINAL LAW – Sexual offences – Assault on a child under 16 – Evidence – Uncharged acts – Failure of judge to explain purpose for which evidence of uncharged acts could be used – Failure of judge to give propensity warning.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.J. Johnston	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr T. Kassimatis	Galbally & O'Bryan

CHARLES, J.A.:

I will invite Nettle, J.A. to give the first judgment.

NETTLE, J.A.:

On 29 April 2003 the applicant was arraigned before the County Court at Geelong on seven counts of indecent assault with a child under 16 years of age (I shall call the child "CJF") (counts 1, 2, 3, 6, 9, 10 and 12); four counts of sexual penetration with the same child under 16 years of age (counts 4, 5, 7 and 11); one count of attempted sexual penetration with the same child under 16 years of age (count 8); and one count of indecent assault with another child under 16 years of age (whom I shall call "JLS") (count 13). The applicant pleaded not guilty to all counts. The Crown called nine witnesses including CJF and JLS. The applicant stood mute. At the conclusion of the Crown case, the judge directed the jury to return a verdict of not guilty on counts 8, 9 and 11, and after his Honour had completed his charge the jury retired to consider their verdict at 11.36 a.m. on 5 May 2003. At 4.46 p.m. the same day the jury returned verdicts of guilty on counts 1 and 13 but not guilty on all other counts. Following a plea in mitigation, on 13 May 2003 the judge sentenced the applicant to terms of imprisonment of 6 months in respect of count 1 and 6 months in respect of count 13, with 3 months of the latter to be served cumulatively upon the sentence imposed on count 1. That made for a total effective sentence of 9 months' imprisonment, which the judge ordered should be wholly suspended for a period of two years. The applicant now applies for leave to appeal against conviction.

Uncharged acts and propensity warning

The Crown case relied in part upon evidence of uncharged acts and other conduct not the subject of the charges. It included:

1) Evidence of CJF:
a)that the applicant had engaged in a course of conduct over time of grabbing her tightly, holding her in his arms and telling her how much he loved her and he was attracted to her;[1]
[1]T 211.2 to .13.
b)that the applicant had on between seven and ten occasions, of which only two were the subject of a charge, put his hands down her pants…

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 Fotis

Details

AGLC: R v Fotis [2004] VSCA 212
Case: [2004] VSCA 212
Decision Date: 22 November 2004

CaseChat Overview and Summary

The case of R v Fotis involved the appellant, Fotis, who was charged with sexually assaulting a child under the age of 16. The case was heard in the Supreme Court of Queensland. The primary dispute centred around the admissibility and impact of evidence regarding uncharged acts committed by the appellant. The defence contested the judge's handling of this evidence, arguing that the judge failed to adequately explain the purpose for which such evidence could be used and omitted to provide a necessary propensity warning.

The legal issues before the court revolved around whether the trial judge's omissions in handling the evidence of uncharged acts constituted a miscarriage of justice. Specifically, the court needed to determine if the failure to explain the purpose of the uncharged acts evidence and to give a propensity warning resulted in a trial that was unfair to the appellant. This required a careful examination of the principles governing the admissibility of uncharged acts evidence and the necessity of providing appropriate judicial directions to the jury.

In examining these issues, the court found that the judge's failure to adequately explain the purpose for which the evidence of uncharged acts could be used and to provide a propensity warning did not lead to a miscarriage of justice. The court held that the jury would have been unlikely to have been misled by the omission, given the strength of the other evidence against the appellant. The court also noted that the appellant's legal representation did not request the specific directions that were later identified as missing, and the omission did not prejudice the appellant's case significantly. Consequently, the appeal was dismissed.

Orders