R v GAE - [2000] VSCA 18

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 91 of 1999

THE QUEEN

G.A.E.

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JUDGES:	WINNEKE, P., CALLAWAY and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6-7 October, 1999
DATE OF JUDGMENT:	25 February, 2000
MEDIA NEUTRAL CITATION:	[2000] VSCA 18	First Revision 1 March 2000

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CRIMINAL LAW – Appeal – Sexual offences – Multiple complainants – Whether verdicts unsafe or unsatisfactory.

EVIDENCE – Propensity evidence – Uncharged sexual acts – Admissibility – Probative value - Whether just in circumstances to admit notwithstanding prejudicial effect – Crimes Act 1958, s.398A(2).

EVIDENCE – Evidence of proximate complaint – Person to whom complaint made not called as witness – Admissibility – Independent confirmation not required – R. v. J (No. 2) [1998] 3 V.R. 602 followed.

TRIAL – Jury question after jury retired to consider verdict – Trial judge’s answer to jury question – Whether answer amounts to re-direction – Whether answer constitutes change in Crown case – Prejudicial effect of answer – Unanimity, certainty in verdict – Latent ambiguity – Whether risk of conviction on evidence of uncharged acts.

TRIAL – Joinder of counts – Multiple complainants – Admissibility – Underlying unity – Whether just in circumstances to admit notwithstanding prejudicial effect – Discretion to sever presentment – Crimes Act 1958, ss.372, 398A(2).

TRIAL – Unauthorised communication between tipstaff and jury – Whether fundamental irregularity – Whether capable of correction by direction.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. P.F. Tehan, Q.C. and Mr. A. Burgess	Henderson & Ball

WINNEKE, P.:

I have had the advantage of reading, in draft form, the reasons for judgment prepared by Callaway and Chernov, JJ.A. Substantially for the reasons given by Chernov, J.A. I agree that all the grounds of appeal argued on behalf of the applicant, save and except ground 5, ought to be rejected. I think I should say, in respect of ground 2, that I do not agree that the evidence of M and S, other than that given in respect of the events at the manse, would have been admissible in a separate trial of the counts involving P. Nevertheless, in the circumstances presented to his Honour, I am satisfied that he was correct to have exercised his discretion not to sever the presentment in the manner requested. Like Callaway, J.A., I would have exercised the discretion in the same way. I also wish to associate myself with the “note of caution” which Callaway, J.A. has sounded in his reasons for rejecting ground 3. Contrary, however, to the view taken by the other members of the Court, it is my opinion that the re-direction which is the subject of ground 5 was, in the context of the trial, a material misdirection. It was a misdirection which, in my view, worked to the disadvantage of the applicant in that it invited the jury to consider certain of the counts on the presentment…

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 GAE

Details

AGLC: R v Gae [2000] VSCA 18
Case: [2000] VSCA 18
Decision Date: 25 February 2000

CaseChat Overview and Summary

The case of R v GAE involved an appeal by the defendant against his conviction and sentence for multiple sexual offences. The trial court had found the defendant guilty based on the testimonies of multiple complainants. The Court of Appeal was tasked with determining whether the verdicts were unsafe or unsatisfactory, considering several legal issues.

The court examined the admissibility of propensity evidence, specifically uncharged sexual acts, and whether their probative value outweighed their prejudicial effect. It also considered the requirement of independent confirmation for evidence of a proximate complaint and whether such evidence could be admitted if the person to whom the complaint was made was not called as a witness. Furthermore, the court reviewed the trial judge's response to a jury question after they had retired to consider their verdict, assessing whether this response amounted to re-direction and if it constituted a change in the Crown's case.

The Court of Appeal found that the verdicts were safe and satisfactory. The court held that the propensity evidence was admissible as its probative value outweighed the prejudicial effect, in line with the provisions of the Crimes Act 1958. It also determined that independent confirmation of a proximate complaint was not necessary, following the precedent set in R. v. J (No. 2) [1998] 3 V.R. 602. The court concluded that the trial judge's response to the jury's question did not amount to re-direction, nor did it constitute a change in the Crown's case, and there was no prejudicial effect on the unanimity or certainty of the verdicts.

The appeal was dismissed, and the defendant's conviction and sentence were upheld.

Orders