R v Lewis - [2002] VSCA 200

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 127 of 2002

THE QUEEN
	v.
DALE ELLIOTT LEWIS

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JUDGES:	WINNEKE, P., CALLAWAY and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 December 2002
DATE OF JUDGMENT:	13 December 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 200

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Criminal law – Practice and procedure – Use of V.A.T.E. tapes – V.A.T.E. tapes should not be marked as exhibits or given to jury for their unrestrained use during deliberations – R. v. B.A.H. [2002] VSCA 164 re-affirmed – Ss.37B and 37C Evidence Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan Q.C. (DPP) and Ms. C.M. Quin	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. P.G. Priest Q.C. and Mr. M.J. Croucher	Leanne Warren & Associates

WINNEKE, P.:

On 20 May 2002, the applicant (now aged 46 years) was convicted by a jury in the County Court on four counts (counts 1, 2, 5 and 7) of wilfully committing indecent acts against SL, a child of nine years of age, contrary to s.47(1) of the Crimes Act 1958. He was acquitted of three other counts (namely counts 3, 4 and 6) alleging similar offences against the same complainant. At the same time he was convicted of one count of wilfully committing an indecent act (count 9) against another complainant (“NH”) and acquitted, by direction, of another offence of “sexually penetrating” NH contrary to s.45(1) of the Crimes Act (count 8). He was, however, convicted on count 8 of the alternative offence of “wilfully committing an indecent act” against NH. After hearing a plea in mitigation of penalty on 22 May 2002, his Honour – on 23 May 2002 – sentenced the applicant to a total effective sentence of two years and six months’ imprisonment and fixed a period of 12 months as the minimum period to be served before the applicant should become eligible for parole. His Honour declared that a period of three days had been served pursuant to the sentence.

Evidence

For reasons which will appear hereafter, it is unnecessary to do more than briefly summarize the evidence given at the trial. The events in issue were alleged to have arisen at a “slumber party” which had been held at the applicant’s house on 21 July 2000 to celebrate his younger daughter’s 9^th birthday. There were a large number of young nine year olds present, and all slept overnight at the premises. It appears that many of them were in sleeping bags in the lounge room and, so it would seem, were packed in tightly. The two complainants said that the applicant had sexually interfered with them – in a manner reflected in the counts on the presentment – during the course of the night; a fact which they announced to other girls when they awoke in the morning. When SL’s mother collected SL at about mid-day on 22 July 2000, SL told her that the applicant had “touched” her in “rude spots” during…

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 Lewis

Details

AGLC: R v Lewis [2002] VSCA 200
Case: [2002] VSCA 200
Decision Date: 13 December 2002

CaseChat Overview and Summary

The matter of R v Lewis was heard in the Court of Appeal, where the appellant, Lewis, contested the use of video and audio tapes (V.A.T.E. tapes) in his criminal trial. The tapes were recordings of the appellant's police interviews and were central to the prosecution's case. Lewis argued that the trial judge had erred in allowing the jury unrestrained access to the tapes during their deliberations, which he contended was prejudicial and violated his rights.

The legal issues before the court were whether the trial judge's directions to the jury regarding the use of the V.A.T.E. tapes were adequate, and if the judge erred in marking the tapes as exhibits and providing them to the jury. The appellant contended that the judge should have directed the jury to view the tapes in the presence of the trial judge and that the tapes should not have been made available to them during deliberations. The prosecution argued that the judge's directions were sufficient and that the practice of providing V.A.T.E. tapes to the jury was well established.

The court found that the trial judge's directions to the jury were insufficient as they did not adequately limit the use of the V.A.T.E. tapes during deliberations. The court reaffirmed the principles set out in R. v. B.A.H. [2002] VSCA 164, which hold that V.A.T.E. tapes should not be marked as exhibits or given to the jury for their unrestrained use. The court noted that the provisions of sections 37B and 37C of the Evidence Act 1958 were designed to ensure the proper use of such materials. The court held that the trial judge's failure to properly direct the jury constituted a significant error that could not be considered harmless. Consequently, the conviction was quashed, and a retrial ordered.

Orders