R v S L - [2005] VSCA 292

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 76 of 2004

THE QUEEN
	v.
S.L.

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JUDGES:	CHARLES, CALLAWAY and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 November 2005
DATE OF JUDGMENT:	9 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 292

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Criminal law – Rape and indecent assault – Complainants the daughter and sister-in-law of the applicant – Alleged offences committed many years earlier – Confessional statements made in course of conversation between applicant and complainants – Conversation covertly recorded – Whether confessional statements made in course of conversation were voluntary – Statements admitted at trial – Errors of principle – Admissibility of statements reconsidered – Only one conclusion available – Crown unable to discharge onus of establishing statements made voluntarily.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C.B. Boyce	Patrick W. Dwyer
For the Crown	Mr O.P. Holdensen, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

CHARLES, J.A.:

Having had the advantage of reading the reasons for judgment prepared by Ashley, J.A., I agree that this application for leave to appeal against conviction must succeed, and a new trial be had on the counts upon which the applicant was convicted, for the reasons given by his Honour.

CALLAWAY, J.A.:

I also agree with Ashley, J.A. As the principal point in the case may be resolved by reference to basal involuntariness[1], it is unnecessary to consider whether the applicant’s sister-in-law and daughter were “persons in authority” within the meaning of that expression at common law.[2]

ASHLEY, J.A.:

[1]McDermott v. R. (1948) 76 C.L.R. 501 at 511 – 512.

[2]Compare R. v. Thompson [1893] 2 Q.B. 12, R. v. Wilson [1967] 2 Q.B. 406, R. v. Scofield (1988) 37 A.Crim.R. 197 and R. v. Burt [2000] 1 Qd. R. 28.

Statement of the case

Before the court is an application by SL for leave to appeal against three convictions for rape (counts 9, 16 and 20) and eight convictions for indecent assault (counts 4 to 8, 14 to 15 and 21), entered after trial in the County Court. [3]
[3]The applicant was sentenced in a total effective sentence of five years and three months’ imprisonment. A non-parole period of two years and nine months was fixed. A declaration was made in respect of pre-sentence detention. I mention these matters for sake of completeness. There is no application for leave to appeal against sentence.

The applicant is a man now aged sixty four. The victims, as the jury found them to be, were CL, the applicant’s daughter, and NJ, the much younger sister of the applicant’s wife. Of the eleven convictions – the applicant was presented on 23 counts in all, and was acquitted in 12 instances - ten related to offences committed against NJ, and one to an offence committed against CL. NJ was born on the 9

August 1959, and was aged between about 12 and 20 in the period embraced by the offending conduct against her of which the applicant was convicted.…

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 S L

Details

AGLC: R v S L [2005] VSCA 292
Case: [2005] VSCA 292
Decision Date: 9 December 2005

CaseChat Overview and Summary

In the case of R v S L, the appellant faced charges of rape and indecent assault, with the complainants being his daughter and sister-in-law. The alleged offences were said to have occurred many years prior to the trial. Confessional statements made by the appellant during a conversation with the complainants were covertly recorded. The central issue before the court was whether these confessional statements were made voluntarily and, therefore, admissible as evidence at trial.

The court considered whether the Crown had discharged its onus to establish that the statements were indeed voluntary. The appellant argued that the statements were not voluntary due to the coercive nature of the conversation. The court undertook a detailed analysis of the circumstances surrounding the recording of the conversation and the context in which the statements were made. The court concluded that the Crown had failed to establish that the statements were made voluntarily, leading to an error of principle in admitting them as evidence.

As a result of the court's finding that the statements were not voluntary, the court had to reconsider their admissibility. The court concluded that there was only one possible outcome available: that the statements were not voluntary. This finding meant that the statements could not be admitted as evidence, and the Crown was unable to discharge its onus of proving the appellant's guilt beyond a reasonable doubt. The court quashed the conviction and ordered a retrial, or alternatively, the appellant's acquittal if the Crown decided not to proceed with a retrial.

Orders