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Roth (a Pseudonym) v The Queen

Roth (a Pseudonym) v The Queen

Case [2014] VSCA 242 30 September 2014

Appeal

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Admissibility of Evidence

Judicial Review

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0099

STEVEN ROTH (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms in the place of the name of the applicant, witnesses and complainants.

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JUDGES:	NEAVE and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 September 2014
DATE OF JUDGMENT:	30 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 242
JUDGMENT APPEALED FROM:	DPP v [Roth] (Unreported, County Court of Victoria, Judge Lawson, 8 March 2012)

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CRIMINAL LAW – Application for extension of time to appeal conviction – R v Darby applied – Whether the merits of the appeal justify a delay of 26 months.
EVIDENCE - Whether substantial miscarriage of justice occurred by reason of the admission of the evidence of the applicant’s flight – Whether judge erred in application of s 32 of Evidence Act 2008 in failing to consider whether the statement relied upon to refresh memory of witness was fresh in the mind of the witness at the time of making the statement.
PROCEDURE – Whether judge erred in failing to direct the jury on the use of the evidence of the applicant’s flight – consciousness of guilt – application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Carr	Doogue O’Brien George
For the Crown	Mr R A Elston QC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
PRIEST JA:

On 5 March 2012 the applicant, Steven Roth, was found guilty by a County Court jury of sexual offences against two sisters, XE and XS, who were both less than 16 years old at the time of the offending. He was convicted of 15 charges of sexual penetration of XE (charges 1 to 4, 10 to 15, 17, 18, and 20 to 22), three charges of sexual penetration of XS (charges 27 to 29), one charge of attempted sexual penetration of XS (charge 26), four charges of an indecent act (charges 5, 19 and 23 relating to XE and charge 24 relating to XS) two charges of causing XE and XS to be involved in making child pornography (charges 6 and 25 respectively) and one charge of producing child pornography relating to XE (charge 7). The jury acquitted him of two charges of sexual penetration of XE alleged to have occurred on St Valentine’s day 2005 (charges 8 and 9), another charge of sexual penetration of XE on which the applicant was found guilty of an alternative charge of an indecent act (charge 19) and one charge of an indecent act with XE (charge 16).

The applicant was sentenced on 8 March 2012. On 26 May 2014, approximately 26 months outside the time limit of 28 days from the date of sentence,[2] the applicant sought an extension of time within which to seek leave to appeal against his conviction. The application for an extension of time was…

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 Roth (a Pseudonym) v The Queen

Details

AGLC: Roth (a Pseudonym) v The Queen [2014] VSCA 242
Case: [2014] VSCA 242
Decision Date: 30 September 2014

CaseChat Overview and Summary

Roth, an appellant, brought an application for an extension of time to appeal against their conviction to the High Court. The respondent, the Crown, opposed the application. The nature of the appeal was to challenge the conviction on the basis of alleged errors in the admission of evidence and jury direction. The court had to determine whether the delay in lodging the appeal was justifiable and if there were any substantial miscarriages of justice due to the admission of the appellant's flight evidence and the judge's handling of witness statements. Additionally, the court assessed whether the judge had erred in not directing the jury on the use of the flight evidence as indicative of consciousness of guilt.

The court examined whether the merits of the appeal justified a delay of 26 months in lodging the application. It considered whether there was a substantial miscarriage of justice due to the admission of evidence concerning the appellant's flight. This involved scrutinising whether the judge had correctly applied section 32 of the Evidence Act 2008, which relates to the admissibility of statements made to refresh a witness's memory, and whether the judge erred in not considering if the statement was fresh in the witness's mind at the time it was made. The court also deliberated on whether the judge should have directed the jury on the proper use of the flight evidence in relation to the concept of consciousness of guilt.

The court held that the appellant's application for an extension of time was refused. It found that the delay in lodging the application was not sufficiently justified by the merits of the appeal. The court concluded that there was no substantial miscarriage of justice in the admission of the flight evidence and that the judge had not erred in the application of section 32 of the Evidence Act 2008. Additionally, the court determined that the judge had not erred in failing to direct the jury on the use of the flight evidence as an indicator of consciousness of guilt. Consequently, the application for an extension of time to appeal was dismissed.

Orders