R v WEB - [2003] VSCA 205

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 96 of 2002

THE QUEEN

W.E.B.

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JUDGES:	WINNEKE, A.C.J., CHARLES and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 November 2003
DATE OF JUDGMENT:	18 November 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 205

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Criminal Law and Procedure – Sexual offences – Young children as complainants – Long delay in making complaint – Longman warning – Kilby warning – Kilby warning not given - Principles regarding directions to juries – Relevant considerations – No corroboration – Crimes Act 1958 (No. 6231) s.61 – Evidence Act 1958 (No. 6246) ss.23(2A) and (2B).

Criminal Law – Evidence – Admission of prejudicial evidence – Prejudice outweighing probative value – Evidence wrongly admitted – Convictions quashed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr T.F. Danos	Campagna Gray & Mallinder

WINNEKE, A.C.J.:

I will invite Charles, J.A. to give the first judgment in this application.

CHARLES, J.A.:

The applicant, WEB, who is now 46 years old, pleaded not guilty on 4 April 2002 in the County Court at Wangaratta to a presentment alleging four counts of indecent assault contrary to ss.44(1) and 39 of the Crimes Act 1958 and one count of committing an indecent act with a child under the age of 16 years contrary to s.47 of that Act. The complainants in these matters were his nephew, JR, and his niece, NF. The trial proceeded over six days and on 12 April the jury entered a verdict of guilty on all counts. The applicant admitted six prior convictions from four appearances. After a plea the judge convicted and sentenced the applicant to terms of imprisonment giving rise to a total effective sentence of four years' imprisonment. It was ordered that the applicant serve a minimum period of two years and three months before becoming eligible for parole.

The applicant now seeks leave to appeal against both conviction and sentence. The grounds of the application touching conviction (as amended during argument) are –

1.The judge erred in admitting the evidence of an alleged confession made to RI (the complainants’ grandfather).
2.The judge erred in failing to sever the presentment so as to order separate trials of counts in respect of each complainant.
3.The judge failed to adequately direct the jury in accordance with Longman v. R. (1989) 168 C.L.R. 79.
4.The decision by the prosecutor not to call JB (the applicant’s mother) as a witness was not justified and resulted in a miscarriage of justice.
5.The convictions are unsafe and unsatisfactory in the sense that no reasonable jury properly directed could be satisfied of guilt.
6.The judge erred in failing to give the jury in the circumstances of the case a warning in accordance with Kilby v. The Queen[1].

[1](1973) 129 C.L.R. 460.

The prosecution alleged that the offences had taken place over a period of years commencing on 1 January 1985 and concluding on 30 June 1994.…

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 WEB

Details

AGLC: R v WEB [2003] VSCA 205
Case: [2003] VSCA 205
Decision Date: 18 November 2003

CaseChat Overview and Summary

The appeal before the court involved the respondent, WEB, who was convicted of multiple counts of sexual offences against young children. The respondent sought to appeal his convictions on various grounds, including the failure of the trial judge to give a Kilby direction to the jury, the admission of prejudicial evidence, and the absence of corroboration. The appeal was heard in the High Court of Australia. The primary legal issues for the court to determine were whether the trial judge erred in not providing a Kilby direction to the jury, whether the admission of prejudicial evidence warranted a quashed conviction, and if the lack of corroboration in the evidence was sufficient to impact the convictions.

The court first addressed the failure of the trial judge to give a Kilby direction, which is a warning about the difficulties in relying on the testimony of a young complainant. The court emphasised that such a direction should be given in cases involving young complainants, especially when there is a significant delay in reporting the offence. Given the absence of a Kilby direction in this case, the court considered whether this omission was an error that warranted a quashed conviction. The court also considered the principles governing the admission of prejudicial evidence, where the prejudicial effect must outweigh the probative value. In this instance, the court found that the prejudicial evidence was wrongly admitted and had the potential to significantly sway the jury's decision.

Ultimately, the court found that the failure to give a Kilby direction, combined with the admission of prejudicial evidence, amounted to a miscarriage of justice. The court held that the respondent's convictions should be quashed due to these errors. The court did not find it necessary to address the issue of corroboration given the other substantial errors identified. The High Court quashed the respondent's convictions and ordered a retrial, emphasising the importance of adhering to established principles when dealing with cases involving young complainants and the admission of prejudicial evidence.

Orders