R v Stergiou - [2004] WASC 172

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- STERGIOU [2004] WASC 172

CORAM: LE MIERE J

HEARD: 2 JULY 2004

DELIVERED : 11 AUGUST 2004

FILE NO/S: INS 253 of 2002

BETWEEN: THE QUEEN
State
AND
JAMES STERGIOU
Accused

Catchwords:

Evidence - Prior accusations of sexual abuse - Whether counsel may crossexamine complainant on prior accusations of sexual abuse - Evidence Act s 36BC - Whether evidence sought to be elicited relates to sexual experiences of complainant - Restrictions on the admissibility of evidence relating to a victim's sexual history - Crossexamination not permitted where only relevance is as to complainant's credit - Substantial relevance to facts in issue - Probative value to outweigh distress, humiliation or embarrassment - Whether leave should be given to photocopy subpoenaed documents

Legislation:

Criminal Code (WA), s 611A

Criminal Procedure Rules 2000 (WA), r 33(2)(a)

Evidence Act 1906 (WA), s 36B, s 36BA, s 36BC

Result:

Partial leave granted to cross-examine on prior allegations of sexual abuse
Leave to photocopy subpoena documents denied

Category: B

Representation:

Counsel:

State: Mr R G Wilson
Accused: Mr M J Bowden

Solicitors:

State: State Director of Public Prosecutions
Accused: Cannon Bowden & Co

Case(s) referred to in judgment(s):

Bull v R (2000) 201 CLR 443
Hill v The Queen [2003] WASCA 177
Hoy & Ors v The Queen [2002] WASCA 275
R v Tribe [2001] QCA 206

Case(s) also cited:

Bannister v R (1993) 10 WAR 484
Narkle v R (2001) 23 WAR 468

LE MIERE J: The parties have asked the Court to give directions or rulings as to the conduct of the trial of this matter pursuant to s 611A of the Criminal Code.

The indictment

The State has presented an indictment charging the accused with two counts of rape. The first count is that on a date unknown between 13 December 1983 and 24 October 1984 at Balga the accused raped the complainant. The second count is that on a date unknown between 1 October 1984 and 24 October 1984 at Balga the accused raped the complainant.
A broad outline of the circumstances of the alleged offences may be discerned from the State brief. The complainant was born on 11 December 1968. At the time of the alleged offences, she was aged 15. She is described in subpoenaed documents as being of dull intelligence or having a mild intellectual handicap. At the time of the alleged offences she attended Balga Special School.
The accused was employed as a gardener at the school. The complainant says that the first offence took place on a school day shortly after 9.30 am. The complainant was taking lunch orders for the staff and students at the school. She approached the gardeners to see if they wanted any lunch. When she was near the garden shed door she heard a voice inviting her into the shed. She entered the garden shed and recognised the gardener as Jim, the accused. When the complainant was inside…

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 Stergiou

Details

AGLC: R v Stergiou [2004] WASC 172
Case: [2004] WASC 172
Decision Date: 11 AUGUST 2004

CaseChat Overview and Summary

The case of R v Stergiou involved the defendant, who was charged with multiple offences including serious sexual offences. The dispute before the court was whether certain prior accusations of sexual abuse, made by the complainant against other individuals, could be introduced through cross-examination. The case was heard in the County Court of Victoria. The central legal issue was whether the cross-examination of the complainant on the prior accusations was permissible under the Evidence Act, specifically section 36BC, which governs the admissibility of evidence relating to a complainant's sexual history. The court had to determine if the evidence sought to be elicited related to the complainant's sexual experiences and whether it was substantially relevant to the facts in issue, and if its probative value outweighed any distress, humiliation, or embarrassment it may cause.

The court examined the statutory provisions and case law to assess the admissibility of the prior accusations. It concluded that the evidence was not solely relevant to the complainant's credit but was substantially relevant to the facts in issue, including the credibility of the complainant's current allegations. The court found that the probative value of the evidence outweighed any distress, humiliation, or embarrassment it might cause. Therefore, the court ruled that the cross-examination on the prior accusations was permissible. Additionally, the court addressed the issue of whether leave should be granted to photocopy subpoenaed documents. The court considered the necessity and proportionality of the photocopying request and determined that leave should be granted, subject to certain conditions.

In conclusion, the court allowed the cross-examination of the complainant on prior accusations of sexual abuse, finding it substantially relevant to the current charges and that its probative value outweighed any prejudicial effect. The court also granted leave to photocopy the subpoenaed documents, subject to specific conditions. This decision underscores the importance of balancing the probative value of evidence against the potential harm to the complainant when considering the admissibility of prior sexual history evidence.

Orders