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RHB v The Queen

RHB v The Queen

Case [2011] VSCA 295 27 September 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0222
RHB	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 September 2011
DATE OF JUDGMENT:	27 September 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 295	1^st Revision 30 September 2011 [22], [23]
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Duggan, Ruling 13 September 2011)

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CRIMINAL LAW – Application for leave to appeal against interlocutory decision – Evidence – Admissibility – Tendency and coincidence evidence – Whether sexual offences committed against accused’s daughters admissible as tendency evidence in trial of accused of sexual offence committed against granddaughter – Application dismissed – Evidence Act 2008 s 97(1), 101.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J F Higham	Doogue & O’Brien
For the Crown	Mr R A Elston SC with Ms C B Hollingworth	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

This is an application for leave to appeal against an interlocutory decision of a judge of the County Court to admit evidence of previous convictions as tendency evidence in the trial of the applicant.

The applicant stands charged with one offence of participating in an indecent act with or in the presence of a child under the age of 16. The complainant is his granddaughter. The offence is alleged to have occurred at the applicant’s home between 3 November 2003 and 2 November 2005, when the complainant was between 10 and 11 years’ of age. The Crown alleges that, at the time of the offence, the complainant was staying with the applicant and his wife at their house for the weekend. While she was playing outside, the applicant came over to her and hugged her from behind. He had his hand on her waist and then he put his hands down her pants and underwear and touched her vagina with the back of his fingers for a period of approximately two minutes.

Some years passed before the complainant complained to her mother. When the applicant was interviewed by police on 8 October 2010 and asked whether he had touched the complainant, he said that it was an accident; that he did not fondle her or touch her and that they were just playing a game. At other stages of the interview, at one point he denied putting his hands over the complainant’s vagina, and at another point he said that he was not was sure if his hand went briefly over her vagina.

Prior to the matter coming on for trial, the Crown served a Tendency Notice, pursuant to s 97(1)(a) of the Evidence Act 2008, that it would seek to adduce evidence to prove that the applicant had a tendency:

a) to act in a particular way, namely, indecently assault prepubescent and pubescent girls to whom he was related by touching them on the vagina; and

b) to have a particular state of mind, namely, an inappropriate sexual interest in and/or attraction…

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 RHB v The Queen

Details

AGLC: RHB v The Queen [2011] VSCA 295
Case: [2011] VSCA 295
Decision Date: 27 September 2011

CaseChat Overview and Summary

The appellant, RHB, appealed against an interlocutory decision of the County Court of Victoria which rejected his application to exclude evidence of sexual offences committed against his daughters from his trial for sexual offences against his granddaughter. The nature of the dispute was whether the court could consider this evidence under the Evidence Act 2008, specifically sections 97(1) and 101. The Court of Appeal of the Supreme Court of Victoria heard the matter.

The legal issue before the court was whether the evidence of the sexual offences against the daughters was admissible as tendency evidence in the trial of the appellant for the sexual offences against his granddaughter. The court had to consider the relevance and probative value of the evidence under section 97(1) of the Evidence Act, and whether it was outweighed by the danger of unfair prejudice under section 101. The appellant argued that the evidence of the sexual offences against his daughters was not relevant to the trial of the sexual offences against his granddaughter, and that its probative value was substantially outweighed by the danger of unfair prejudice.

The court held that the evidence of the sexual offences against the daughters was relevant and probative of the appellant's propensity to commit sexual offences against young females, and that its probative value was not substantially outweighed by the danger of unfair prejudice. The court noted that the evidence was relevant to the issue of identity, as it tended to show that the appellant had a propensity to commit sexual offences against young females, and that this propensity was not confined to his relationship with his granddaughter. The court also noted that the evidence was necessary to rebut the appellant's defence that the sexual offences against his granddaughter were the result of a consensual relationship. The court held that the evidence was admissible under section 97(1) of the Evidence Act, and that its admission did not breach section 101.

The court dismissed the appellant's application for leave to appeal against the interlocutory decision of the County Court. The court held that the County Court had not erred in law in admitting the evidence of the sexual offences against the daughters, and that the appeal was without merit. The court noted that the appellant's arguments were speculative and did not address the specific circumstances of the case. The court held that the County Court had correctly exercised its discretion in admitting the evidence, and that the appeal was an abuse of process. The court dismissed the appeal with costs.

Orders