R v TSR

Case [2002] VSCA 87 23 August 2002

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.264 of 2000

THE QUEEN
	v.
TSR

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JUDGES:	PHILLIPS, C.J., PHILLIPS and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15, 16 and 17 April 2002
DATE OF JUDGMENT:	23 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 87

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Criminal law – Practice and procedure – Five counts on presentment – Accused acquitted on one count at first trial – Second trial commences before presentment filed again containing four counts only – Whether accused tried on first or second presentment – Whether verdicts a nullity – Effect of errors in endorsements on presentment.

Criminal law – Sexual Offences – Indecent acts with child under the age of 16 – Meaning of “with” - Whether complaint admissible – Cross-examination of accused as to belief about complainant’s alleged promiscuity – Cross-examination based on inadmissible document – Whether prosecutor bound to disclose the document to the accused – Whether good character direction required – Whether verdict unsafe and unsatisfactory – Crimes Act 1958 s.47.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. O.P. Holdenson Q.C. with Mr. G.T. Chettle	Kenna Croxford & Co.

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Chernov, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

PHILLIPS, J.A.:

I have had the considerable advantage of reading the detailed and comprehensive reasons for judgment prepared by Chernov, J.A. and I agree that this application for leave to appeal against conviction should be dismissed for the reasons given by his Honour. I add a few words of my own on one aspect only.

In all of the circumstances of this case I am clear that we may disregard the endorsements on the presentment, apparently made by the judge’s associate, that leave to file over was given and that a stay was ordered on what has been called “the first presentment”. In my opinion it is plain that there was no “second” presentment, in that the mere filing of the later document, on the second day of the trial, had no relevant consequence save to re-state in convenient form the four remaining counts on which the accused had already been put in charge and which the jury had by then been empanelled to try. The accused had been arraigned on those four counts and the jury empanelled. The mere filing, a day or so later, of the presentment in a new form, in which the counts were re-stated more conveniently, had no impact on the continuation of the trial. So much is plain, in my opinion, from the course of events. In particular, there was no re-arraignment, nor was the jury discharged so that a new jury might be empanelled. Mr. Holdenson relied upon these omissions to found an argument that all that followed upon the filing of the new document was therefore…

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 TSR

Details

AGLC: R v TSR [2002] VSCA 87
Case: [2002] VSCA 87
Decision Date: 23 August 2002

CaseChat Overview and Summary

The case of R v TSR involved the respondent who was charged with various offences related to indecent acts with a child under the age of 16. The respondent was initially tried on five counts, but was acquitted on one count during the first trial. A second trial was subsequently held, but the presentment filed did not include the acquitted count, resulting in four counts being presented. The central issue before the court was whether the respondent was tried on the first or the second presentment and if the verdicts from the second trial were a nullity due to errors in the endorsements on the presentment. The court was also required to determine if the complaint was admissible and if there were any procedural errors that affected the fairness of the trial.

The court examined the nature of the offences, the procedural aspects of the trial, and the impact of the errors in the endorsements on the presentment. It was crucial to determine if the trial was conducted correctly under the relevant provisions of the Crimes Act 1958. The court found that despite the errors in the endorsements on the presentment, the trial was not rendered a nullity as the errors did not prejudice the respondent. The court also held that the complaint was admissible and the cross-examination of the accused regarding the complainant’s alleged promiscuity was permissible. Furthermore, the court ruled that the prosecutor was not bound to disclose an inadmissible document to the accused and that there was no requirement for a good character direction under section 47 of the Crimes Act 1958. The court concluded that the verdicts were not unsafe and unsatisfactory.

The court maintained the verdicts from the second trial, confirming the respondent's convictions on the four counts. The court’s decision underscored the importance of procedural accuracy in criminal trials but also recognised the principle that minor errors in the endorsements on a presentment do not necessarily invalidate the trial if the accused was not prejudiced. The court’s ruling ensured that the respondent’s rights were upheld while also addressing the substantive charges against him.

Orders