S W C v The Queen

[2011] VSCA 264

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2010 0062 

SWC
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and HANSEN JJA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 July 2011
DATE OF JUDGMENT:	13 September 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 264
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Chettle, 2 March 2010)

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CRIMINAL LAW – Conviction – Sexual penetration of a child aged 16 or 17 under appellant’s care, supervision or authority (Counts 1, 2 and 5 against niece) – Indecent act with child under 16 (Counts 3 and 4 against daughter) – Niece gave evidence of uncharged acts – Relevant to context – No objection by defence counsel who wanted evidence admitted to use in cross-examination of niece – Whether evidence received as tendency evidence – Whether judge required to direct jury of need to be satisfied beyond reasonable doubt of uncharged acts alleged by niece before relying on such acts in relation to counts 1, 2 and 5 – R v Sadler (2008) 20 VR 69 considered – Direction not required in the circumstances – Whether judge failed to tell jury it could not use niece’s evidence of uncharged acts in relation to counts 3 and 4 – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G F Meredith	Greg Thomas
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. I agree with Hansen JA that this appeal against conviction should be dismissed.  Respecting ground 1A, I have nothing to add to what his Honour has said.  But I do wish to say something about ground 1.

1. This was an unsatisfactory case so far as the basis for admission of the evidence of complainant A with respect to uncharged acts was concerned.  The case was also very unusual because of the use sought to be made of the uncharged acts evidence by the appellant.  Each of those matters bears upon the disposition of ground 1.

1. The trial was relevantly governed by the provisions of the Evidence Act 2008 (‘the Act’). In point were ss 97, 100 and 101 of that Act, not s 398A of the Crimes Act 1958.

1. No notice of intention to adduce evidence of uncharged acts as tendency evidence was given under s 97(1)(a) of the Act. In discussion with the judge, before the trial went into evidence, these things happened: (1) defence counsel told the judge that the uncharged acts[1] would ‘come to the fore’, if not in examination in chief of the complainant A, then in her cross-examination;  (2) the prosecutor, acknowledging that no notices had been given, stated that the evidence was sought to be led as tendency evidence;  (3) defence counsel stated that he had no objection to the judge ‘abridging the requirement for notice’;  (4) the judge stated, in effect, his understanding that the Crown was intending to put the evidence as going to ‘context’, and said that he would…