Legal Research
Cases
Rapson v The Queen

Rapson v The Queen

Case [2014] VSCA 216 11 September 2014

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0248

DAVID EDWARD RAPSON	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	MAXWELL P, NETTLE, BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 August 2014
DATE OF JUDGMENT:	11 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 216
JUDGMENT APPEALED FROM:	DPP v Rapson (Unreported, County Court of Victoria, Judge Gaynor, 17 October 2013) (Conviction)

---

CRIMINAL LAW – Appeal – Conviction – Rape and indecent assault – Tendency evidence – Eight complainants – Whether evidence of individual complainants cross-admissible – Whether sufficient similarity or commonality in sexual acts or surrounding circumstances – Crown concession that evidence of two complainants not cross-admissible – Evidence of other complainants cross-admissible – Appeal allowed, retrial ordered – Velkoski v The Queen [2014] VSCA 121 applied – Evidence Act 2008 ss 97, 101.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr O P Holdenson QC with Mr S Ginsbourg	Randles Cooper & Co Pty Ltd
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
NETTLE JA
BEACH JA:

Summary

This appeal raises, once again, the question of cross-admissibility of evidence as tendency evidence under s 97 of the Evidence Act 2008 (‘Evidence Act’). As the decisions of this Court illustrate, judges of the County Court are frequently confronted with this question in connection with trials of sexual offences.

The appellant was a teacher at a secondary school. He is charged with having committed sexual offences against eight boys who were in his charge at that school. The trial judge ruled that the evidence of each victim was admissible in proof of the charge(s) relating to each of the other victims, and that all of the charges should be tried together. The appellant was convicted on all charges. His submission on appeal was that none of the evidence was cross-admissible.

In assessing that contention, we had the considerable advantage, which was not available to the trial judge, of the recent decision of this Court in Velkoski v The Queen,[1] handed down on 18 June 2014. Drawing on the substantial body of appellate jurisprudence on this question, the Court in Velkoski[2] provided a clear restatement of the principles which should guide judges in deciding whether the evidence in question has

the degree of similarity in the commission of the offences or the circumstances which surround the commission of the offences that is necessary to support tendency reasoning.[3]

[1][2014] VSCA 121 (‘Velkoski’).

[2]Ibid.

[3]Ibid [163].

The position initially adopted by the Crown, in response to the application for leave to appeal, was that the trial judge’s ruling on cross-admissibility was unexceptionable. In light of the decision in Velkoski,[4] however, the Crown revised its written case and, for the reasons set out below, conceded that the evidence of two of the complainants was not cross-admissible in proof of the charges relating to the other complainants.
[4][2014] VSCA 121.

At the commencement…

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 Rapson v The Queen

Details

AGLC: David Edward Rapson v The Queen [2014] VSCA 216
Case: [2014] VSCA 216
Decision Date: 11 September 2014

CaseChat Overview and Summary

In the case of Rapson v The Queen, the appellant was convicted of multiple counts of rape and indecent assault against eight different complainants. The High Court of Australia was tasked with determining the admissibility of the evidence of these complainants. The central issue before the court was whether the evidence of individual complainants was cross-admissible under the Evidence Act 2008. Specifically, the court had to assess if there was sufficient similarity or commonality in the sexual acts or surrounding circumstances to permit the cross-admissibility of the evidence. The Crown conceded that the evidence of two complainants was not cross-admissible, but argued that the evidence of the remaining six complainants was admissible. The court found that the evidence of the two complainants whose evidence was not cross-admissible was nonetheless admissible on the charges relating to them individually. However, the court concluded that the evidence of the remaining complainants was not sufficiently similar or common to be cross-admissible.

The court's reasoning was grounded in the principles established in Velkoski v The Queen. It held that the test for determining the admissibility of tendency evidence in sexual offence cases was whether there was a sufficient similarity or commonality in the acts or surrounding circumstances. The court found that the evidence of the two complainants whose evidence was not cross-admissible was nonetheless admissible on the charges relating to them individually. However, the court concluded that the evidence of the remaining complainants was not sufficiently similar or common to be cross-admissible. The court held that the trial judge had erred in admitting the evidence of the remaining complainants, and that this error was likely to have affected the outcome of the trial. Accordingly, the court allowed the appeal and ordered a retrial. The court's decision underscores the importance of carefully assessing the admissibility of tendency evidence in sexual offence cases, and the need for trial judges to ensure that such evidence is properly admitted in accordance with the law.

Orders