R v Salter - [2002] VSCA 128

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 403 of 2000

THE QUEEN
	v.
TY ROBERT SALTER

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JUDGES:	WINNEKE, P., BUCHANAN, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 July 2002
DATE OF JUDGMENT:	22 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 128

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Criminal law – Conviction on multiple counts of rape and threat to kill – Whether a Longman warning was required – Kilby direction given – Use to be made of uncharged acts in determining the probability or improbability of the charged acts.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.J. Ryan	Ms. Kay Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. J.F. Desmond	Victoria Legal Aid

WINNEKE, P.:

The issue on this appeal is whether the trial judge was in error, in the light of the evidence given in the trial, in failing to give to the jury a “Longman type direction”[1] and/or in failing to adequately direct the jury as to the significance of the delay on the part of the complainant in making complaints of the nine rapes and the one assault with intent to rape which she alleged against the applicant, and in respect of which the jury convicted him of six of such rapes (counts 7, 12, 14, 16, 17 and 18). The jury acquitted the applicant of the other three counts of rape alleged (namely counts 10, 11 and 13) and the count of assault with intent to rape (count 8). The rapes of which he was convicted accounted for eight of the eight-and-a-half years’ imprisonment imposed upon the applicant by the trial judge.
[1]Cf. Longman v. The Queen (1989) 168 C.L.R. 79.

For the purposes of this judgment, I gratefully adopt the summary of the evidence given at trial outlined in the judgment of O’Bryan, A.J.A. Because I have the misfortune to differ from his Honour as to the ultimate outcome of this appeal, I will endeavour to confine my reasons for doing so within short compass.

Most of the evidence at the trial was given by the complainant. There was some brief evidence given by some of her friends which touched upon the events of 27 and 28 September 1997 (counts 5, 6 and 7; namely “threat to kill”, “false imprisonment” and “rape”); and the events of 15 December 1997 (count 8; “assault with intent to rape”). None of this other evidence supported the complainant’s claims of sexual assault. Indeed the friend who was in the complainant’s house when the assault with intent to rape was alleged to have occurred gave evidence which was very different from that of the complainant, and no doubt led to the acquittal on this count. Further, there was a statement of Dr. Williams – the complainant’s general practitioner – which by consent was read to the Court. He said that he had examined the complainant on 28 January 1999 when she had complained to him that she had been assaulted by the applicant on that day;…

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 Salter

Details

AGLC: R v Salter [2002] VSCA 128
Case: [2002] VSCA 128
Decision Date: 22 August 2002

CaseChat Overview and Summary

In the case of R v Salter, the appellant faced multiple charges, including rape and threats to kill. The case was heard in the Supreme Court of Victoria, with the Court of Appeal delivering the judgment. The primary issue was whether a Longman warning was required in this instance, as well as the appropriateness of the Kilby direction given to the jury regarding the use of uncharged acts in determining the probability or improbability of the charged acts.

The appellant argued that a Longman warning should have been given to the jury, as the evidence presented included uncharged acts that were similar in nature to the charged offences. The Longman warning is a direction to the jury that the fact that an accused person has been charged with certain offences does not necessarily mean they committed those offences, and that they should consider each offence separately. The court considered whether the similarities between the uncharged and charged acts were significant enough to warrant such a warning. The appellant also contended that the Kilby direction, which allowed the jury to consider uncharged acts in determining the probability or improbability of the charged acts, was inappropriate and prejudicial.

The Court of Appeal held that a Longman warning was not required in this instance, as the uncharged acts were not so similar to the charged acts as to create a significant risk of prejudice. The court found that the Kilby direction was correctly given, as the uncharged acts were relevant to the assessment of the probability or improbability of the charged acts. The similarities between the uncharged and charged acts did not render the evidence inadmissible or require a Longman warning, as the jury could consider each offence separately and weigh the evidence accordingly. The court upheld the appellant's convictions on all counts.

The final orders of the court were that the appellant's convictions on all counts were upheld, and the appeal was dismissed. The court did not find merit in the arguments presented by the appellant and confirmed the jury's decision based on the evidence and directions provided.

Orders