S D v The Queen

[2011] VSCA 76

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0039

SD
	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	NETTLE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 March 2011
DATE OF JUDGMENT:	3 March 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 76

---

CRIMINAL LAW – Interlocutory appeal – Application for review of refusal to certify under s 295 Criminal Procedure Act 2009 – Trial judge refusing to discharge jury after complainant gave evidence-in-chief of uncharged sexual acts – Whether evidence-in-chief of complainant ill accorded with case as presented – Whether complainant’s reference to uncharged acts able to be dealt with by appropriate directions – Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Kilduff with Mr J Behan	Robert Stary Lawyers
For the Crown	Mr A Schwarz with Mr G Barr	Mr C. Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1. This is an application pursuant to s 296 of the Criminal Procedure Act 2009 for review of a County Court judge's decision to refuse to certify that his refusal to discharge a jury is of sufficient importance to justify it being determined on an interlocutory appeal.

1. The applicant is being tried in the County Court at Melbourne on two counts of penile/oral rape, one count of penile/vaginal rape, one count of intentionally causing injury and one count of assault, all of which offences are alleged to have been committed against a single complainant during the course of a single two‑hour episode of criminal behaviour on 16 January 2007.

1. The evidence given by the complainant at the applicant's committal hearing and the basis on which the Crown opened the case at trial was that the applicant twice penetrated the complainant's mouth with his penis and once penetrated her vagina with his penis.  When the complainant was called to give evidence at trial, however, she deposed in evidence‑in‑chief that the applicant had twice penetrated her vagina with his penis and once penetrated her vagina with his finger.

1. At the conclusion of her evidence‑in‑chief, counsel for the applicant applied for the jury to be discharged on the basis that the evidence ill accorded with the case on which he was presented for trial and, insofar as it disclosed an additional act of penile/vaginal rape and an additional act of digital/vaginal rape, was highly prejudicial. 

1. The judge resisted the application on the basis that, although the evidence ill accorded with the case as charged, it was not sufficiently prejudicial to give rise to a high degree of need to discharge the jury.  As appears from discussion between the judge and counsel in the course of argument, the judge considered that any prejudice which might result from the complainant’s reference to additional uncharged acts could be dealt with by appropriate directions.

1. Counsel for the applicant submitted in support of this application that the result of the judge's ruling was to place him in the impossible position of being unable to cross‑examine the complainant effectively as to the act of penile/vaginal rape with which the applicant is charged, and further or alternatively created for the applicant ineradicable prejudice the result of the introduction of inadmissible evidence of uncharged acts.

1. In my view the application is misconceived.  It is true that the evidence given by the complainant in‑chief goes beyond the evidence which she gave at committal and on the basis of which the applicant was presented for trial.  In a sense, it is also true that her reference to additional uncharged acts is prejudicial to the applicant.  But as at present advised (and I do not mean by that to bind the trial judge), it appears to me that the uncharged acts to which the complainant referred form an integral part of the criminal conduct in which the charged acts are alleged to have occurred.  That is to say, they form part of and inform the single episode of criminal conduct which includes the charged acts of rape and the offences of assault and intentionally causing injury.

1. I accept that, as matters stand, there is some difficulty for the applicant, in knowing which of the several penile/vaginal penetrations to which the complainant referred in evidence is relied upon by the Crown for the count of penile/vaginal rape for which he is on trial.  But it appears to me, as it seems also to have occurred to the trial judge, that the difficulty can be resolved, before the jury is called back, by requiring the Crown to make clear orally, and perhaps also in writing, which of the alleged penile/vaginal penetrations it relies upon in order to sustain the count of penile/vaginal rape on which the applicant was presented.  Presumably, it will also be necessary for the prosecutor to identify to the jury, once they are called back, which of those penile/vaginal penetrations the Crown relies upon to sustain the count alleged.

1. If, contrary to my view, the evidence of uncharged acts were inadmissible, then it may be that it would create prejudice for the applicant which directions could not cure.  But until and unless it is ruled that the evidence of uncharged acts is inadmissible, that question remains academic. 

1. Counsel for the applicant complained that, in the way in which events had evolved, he has been deprived of the opportunity of making submissions to the judge as to whether the evidence of uncharged acts is inadmissible.  But, plainly, that is not so.  The judge has thus far afforded counsel every opportunity, and signalled that he will provide such further opportunities as might be necessary, for the applicant's counsel to make such submissions as he considers appropriate.  Then the judge will rule.

1. It is also to be observed that, in the course of discussions between the judge and counsel, the judge signalled that he would not close his mind to the possibility of a further application for discharge at a later point, once it has seen how the reminder of the complainant's evidence turns out.  That, too, was an appropriate course to adopt given that the situation at trial is constantly changing and evolving.

1. In addition to those considerations, this Court has twice recently made plain that it is only in an exceptional case that a refusal by a trial judge to discharge a jury is a matter appropriate to be considered on interlocutory appeal, especially where, as is this case, the trial is a short one.[1]

   [1]Dertilis v R [2010] VSCA 360 [17]; MA v R [2011] VSCA 13 [7]–[13].

1. Ultimately, the discharge of a jury is a question of discretion for the judge to exercise on the basis of all relevant considerations, which included in this case an apparently fragile complainant whose ability to give evidence would likely be prejudiced severely by the delays attendant upon a discharge of the jury and the calling of a new trial.

1. In the circumstances I am not persuaded that judge was in error in refusing to certify.  I would, therefore, refuse the application.

REDLICH JA:

1. I agree for the reasons my brother Nettle has given that leave to appeal should be refused.  The fact that uncharged acts emerge in the course of a complainant's account in a trial alleging sexual offences is not an uncommon occurrence and it will not give rise to the possible need to discharge the jury unless it is first demonstrated to the trial judge's satisfaction that the uncharged acts are inadmissible.  

1. As counsel for the applicant concedes, this is a short trial.  As the court stated in MA v R,[2] the fact that a trial will be short is a very weighty consideration against the grant of leave.

   [2][2011] VSCA 13.

NETTLE JA:

1. The order of the Court is that the application is refused.

‑  ‑  ‑