R v VAS - [2006] VSCA 159

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 133 of 2005

THE QUEEN
	v.
VAS

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JUDGES:	MAXWELL, P., VINCENT, J.A. and BONGIORNO, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 May 2006
DATE OF JUDGMENT:	16 August 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 159

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CRIMINAL LAW – Conviction – Committing an indecent act with a child under the age of 16 years – Propensity evidence – Requirement that jury be adequately warned of the ways in which evidence cannot be used – R v Grech [1997] 2 VR 609 – No such instruction given by trial judge – Possibility that jury reasoning to applicant’s guilt influenced by the impermissible use of propensity evidence – Miscarriage of justice – Appeal allowed – Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O.P. Holdenson, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr C.B. Boyce	Victoria Legal Aid

MAXWELL, P.
VINCENT, J.A.
BONGIORNO, A.J.A.:

The applicant was found guilty by a jury in the County Court, on 18 February 2005, on three counts of committing an indecent act with a child under the age of 16 years (counts 1, 3 and 5 on the presentment).

He now seeks leave to appeal against those convictions, relying upon the grounds that:

1.The learned judge failed to adequately warn the jury about the dangers inherent in relying upon the complainants’ evidence and in particular the forensic disadvantages that arose by virtue of delay.
2.The learned judge erred by failing to give the jury a warning in accordance with R v Grech [1997] 2 V.R. 609, and, in particular, erred in that he failed to adequately instruct the jury as to the use that they could and could not make of the evidence of, for instance, the use of pornographic videos and the vibrator.
3.The verdicts of ‘guilty’ should be set aside on the ground that they are unreasonable or cannot be supported having regard to the evidence.
PARTICULARS
(a)The verdicts of guilty are unsafe and unsatisfactory; and,
(b)The verdicts are against the evidence and the weight of the evidence.

The Background

In view of the conclusion at which we have arrived, the evidentiary background need only be set out in the barest detail.

L, the child referred to in counts 1 and 3, was born on 19 June 1989. Her younger sister K, who was born on 15 April 1991, is the child referred to in count 5.

The parents of the children, RM and KM, were friendly with the applicant and his wife, T, and from time to time, the girls would stay at the applicant’s home.

In 1996 the M family moved to an address close to the city where they resided for some years. According to L, while they were living there and on an occasion when she was staying at the applicant’s home[1], he gave her some lipstick to put on her mouth. The young girl applied too much and the applicant told her…

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 VAS

Details

AGLC: R v VAS [2006] VSCA 159
Case: [2006] VSCA 159
Decision Date: 16 August 2006

CaseChat Overview and Summary

The case of R v VAS involved a defendant who was convicted of committing an indecent act with a child under the age of sixteen years. The conviction was appealed on the basis that the trial judge failed to adequately warn the jury regarding the use of propensity evidence, potentially leading to a miscarriage of justice. The Court of Appeal reviewed the trial proceedings and examined whether the absence of appropriate warnings could have influenced the jury's reasoning towards the applicant’s guilt.

The central legal issue was whether the trial judge's failure to instruct the jury about the limitations on using propensity evidence resulted in a miscarriage of justice. The court considered whether such a failure could have led the jury to improperly consider evidence that was not relevant to the specific charges against the applicant. The court also examined the requirement, as established in R v Grech, that juries be adequately warned about the impermissible use of propensity evidence.

In its reasoning, the Court of Appeal found that the trial judge did not provide the necessary warnings about the use of propensity evidence, as required by R v Grech. This omission could have led the jury to improperly consider evidence that was not relevant to the charges against the applicant. The court concluded that there was a real possibility that the jury’s reasoning towards the applicant’s guilt was influenced by the impermissible use of propensity evidence. Given this, the Court of Appeal determined that a miscarriage of justice had occurred. Consequently, the appeal was allowed, and a re-trial was ordered.

Orders