Roger Daniels (a pseudonym)[1] v The Queen - [2016] VSCA 291

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0137

S APCR 2016 0138

ROGER DANIELS (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	BEACH, KAYE and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2016
DATE OF JUDGMENT:	28 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 291
JUDGMENT APPEALED FROM:	DPP v [Daniels] (Unreported, County Court of Victoria, Judge M P Bourke, 1 June 2016); DPP v [Daniels] (Unreported, County Court of Victoria, Judge M P Bourke, 9 June 2016)

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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of a child under the age of 16 (5 counts) – Complainants were step-granddaughters of applicant – Separate trials in respect of each complainant – Admissibility of text messages between complainants containing allegations of sexual assault – Evidence revealed mutual support and context in which complainants decided to complain to father and to police – Prejudicial effect minimised by directions to jury not to use evidence for tendency or coincidence purpose and editing of text messages – Evidence Act 2008 ss 136, 137 – Applications for leave to appeal granted, appeals dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Ginsbourg	Dribbin & Brown
For the Respondent	Mr D A Trapnell QC	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA
KAYE JA
McLEISH JA:

Following separate trials, the applicant was convicted on five charges of sexual penetration of a child under 16, contrary to s 45(1) of the Crimes Act 1958. The first trial concerned two charges relating to AA. The second trial concerned three charges relating to BB, AA’s younger sister.

The applicant was sentenced on all charges to a total effective sentence of 7 years’ imprisonment with a non-parole period of 4 years and 6 months.

The applicant now seeks leave to appeal against conviction in each trial on the following grounds, which both raise the same issue:

AA
1.The learned trial judge erred in refusing to exclude pursuant to s 137 of the Evidence Act 2008 evidence of SMS messages sent to the complainant [AA] by her sister [BB] that contained an allegation by [BB] that the applicant had sexually assaulted her.
BB
1.The learned trial judge erred in refusing to exclude pursuant to s 137 of the Evidence Act 2008 evidence of SMS messages sent to the complainant [BB] by her sister [AA] that contained an allegation by [AA] that the applicant had sexually assaulted her.

Crown case

The applicant’s wife was the maternal grandmother of the complainants. During the period of the offending, the applicant lived with her. The complainants and their siblings regularly stayed at the applicant’s home from the age of five to their mid-teens. When young, the children sometimes slept in the applicant’s bed, with the applicant and his wife. All the offending was alleged to…

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.

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Details

Case: [2016] VSCA 291
Decision Date: 28 November 2016

CaseChat Overview and Summary

The case of Roger Daniels (a pseudonym) v The Queen involved the appellant's appeal against his convictions for multiple counts of sexual penetration of a child under the age of sixteen. The complainants in this case were the appellant's step-granddaughters. Each of the five counts related to separate incidents involving one of the complainants. The trial was conducted in two separate instances due to the distinct nature of the allegations concerning each complainant.

The central legal issues in this appeal were the admissibility of text messages exchanged between the complainants which contained allegations of sexual assault. The appellant argued that the text messages should not have been admitted as evidence as they were prejudicial and could have misled the jury. The court needed to determine whether the probative value of the text messages outweighed their prejudicial effect, and whether the jury was adequately directed to consider the evidence appropriately.

The court held that the text messages were indeed prejudicial, but the prejudicial effect was minimised by the directions given to the jury and the editing of the text messages. The court found that the text messages provided context and mutual support for the complainants' accounts, and therefore had significant probative value. The court further held that the trial judge's directions to the jury not to use the evidence for purposes of tendency or coincidence effectively mitigated any prejudicial impact. The court ultimately concluded that the evidence was admissible under the provisions of the Evidence Act 2008, sections 136 and 137. Consequently, the applications for leave to appeal were granted, but the appeals were dismissed.

Orders