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

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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

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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.

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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:

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.

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.

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.

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.

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.

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…

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 S D v The Queen

Details

AGLC: S D v The Queen [2011] VSCA 76
Case: [2011] VSCA 76
Decision Date: 3 March 2011

CaseChat Overview and Summary

The respondent brought an appeal against the decision of the trial judge, who had refused to discharge the jury after the complainant gave evidence-in-chief of uncharged sexual acts. The trial judge had considered whether the evidence-in-chief of the complainant was ill-accorded with the case as presented and whether the complainant's reference to uncharged acts could be dealt with by appropriate directions. The appellant sought a review of the trial judge's refusal to certify under section 295 of the Criminal Procedure Act 2009.
The primary issue before the court was whether the trial judge's refusal to discharge the jury was an error of law. The court considered whether the evidence-in-chief of the complainant was ill-accorded with the case as presented and whether the complainant's reference to uncharged acts could be dealt with by appropriate directions. The court noted that the trial judge had directed the jury to disregard the evidence of uncharged sexual acts and had emphasised that the jury was to consider only the evidence relevant to the charges.
The court held that the trial judge's decision was not an error of law. The court found that the evidence-in-chief of the complainant was not so ill-accorded with the case as presented that the trial could not proceed. The court also found that the complainant's reference to uncharged acts could be dealt with by appropriate directions. The court held that the trial judge had acted within his or her discretion in refusing to discharge the jury.
The court refused the application for review of the trial judge's refusal to certify under section 295 of the Criminal Procedure Act 2009. The court held that the trial judge's decision was not an error of law and that the trial could proceed. The court emphasised that the jury had been appropriately directed to disregard the evidence of uncharged sexual acts and to consider only the evidence relevant to the charges.

Orders

Orders of the court

The order of the Court is that the application is refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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