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Saw Wah v The Queen

Saw Wah v The Queen

Case [2014] VSCA 7 14 February 2014

Criminal Liability

Admissibility of Evidence

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0151

SAN MAUNG SAW WAH
	Applicant
v
THE QUEEN	Respondent

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JUDGES	WEINBERG, PRIEST and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	4 February 2014
DATE OF JUDGMENT	14 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 7
JUDGMENT APPEALED FROM:	DPP v Saw Wah (Unreported, County Court of Victoria, Judge Cannon, 27 February 2013 (Conviction))

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CRIMINAL LAW — Conviction — Sexual offending against child under 16 — Applicant in position to lead evidence of good character — No prior convictions — Applicant had, however, been convicted of traffic offences subsequent to alleged sexual offending — Traffic offences included careless driving, driving whilst under the influence of alcohol and leaving scene of collision — Traffic offences completely irrelevant — Prosecutor foreshadowed that if evidence of good character led details of traffic offending would be brought out — Trial judge ruled that such evidence could be led in rebuttal of evidence of good character — Ruling erroneous — s 110 Evidence Act 2008 (Vic) discussed — Leave granted — Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich	Dooge O’Brien George
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

The applicant stood trial in the County Court at Melbourne on two charges of sexual penetration of a child under 16 (charges 2 and 5) and five charges of indecent act with a child under 16 (charges 1, 3, 4, 6 and 7). He was convicted on charges 1 to 4, and acquitted of charges 5 to 7. He was sentenced to a total of five years and six months’ imprisonment with a non-parole period of three years and seven months.

The applicant now seeks leave to appeal against conviction only. He relies upon the following two grounds:

1.The trial judge erred in ruling that, in the event the applicant called evidence of good character, the Crown would be permitted to call evidence in rebuttal, resulting in a substantial miscarriage of justice.
…
3.The trial judge was in error in refusing to give the jury a direction that the delay in complaint had caused a significant forensic disadvantage to the applicant, resulting in a substantial miscarriage of justice.

There was originally an additional ground relating to uncharged acts. However, that ground was expressly abandoned before the hearing of this application.

Overview

The applicant is of Burmese origin, and a member of the Karen Ethnic Community. So too is the complainant, ‘C’. The applicant came to this country in 2006 with his wife, having spent many years previously in a refugee camp in Thailand.

C was born in June 2000. She emigrated with her family to Australia in about 2005. The applicant and C’s family became friends through a mutual interest in Karen cultural activities, particularly traditional ‘Done’ dancing. The applicant was a teacher of that form of dance.

C’s mother and father both regularly took part in Done dancing.…

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 Saw Wah v The Queen

Details

AGLC: Saw Wah v The Queen [2014] VSCA 7
Case: [2014] VSCA 7
Decision Date: 14 February 2014

CaseChat Overview and Summary

In Saw Wah v The Queen, the applicant sought to appeal his conviction for sexual offences against a child under the age of 16. The applicant, who had no prior convictions, was in a position to lead evidence of his good character. However, he had been convicted of several traffic offences after the alleged sexual offences. These traffic offences included careless driving, driving while under the influence of alcohol, and leaving the scene of a collision. The trial judge ruled that the applicant could lead evidence of his good character, but that the prosecution could rebut such evidence by introducing the traffic offences. The applicant argued that the traffic offences were completely irrelevant to his character and that the ruling was erroneous.

The legal issue before the court was whether the traffic offences were admissible in rebuttal of the applicant’s evidence of good character. The court considered section 110 of the Evidence Act 2008 (Vic), which sets out the circumstances in which evidence of a person’s character may be adduced. The court noted that section 110(3) provides that evidence of a person’s character may be led by the defendant, but that the prosecution may adduce evidence in rebuttal. However, the court held that the traffic offences were not admissible in rebuttal because they were completely irrelevant to the applicant’s character in relation to the sexual offences.

The court held that the traffic offences were not admissible in rebuttal because they were completely irrelevant to the applicant’s character in relation to the sexual offences. The court noted that section 110(4) of the Evidence Act provides that evidence of a person’s character is not admissible for the purpose of proving that the person acted in accordance with that character on a particular occasion, unless the evidence is adduced by the defendant. The court held that the traffic offences did not go to the applicant’s character in relation to the sexual offences and were therefore completely irrelevant. The court also noted that the trial judge’s ruling had the effect of punishing the applicant for his traffic offences, which was not permissible under the law. The court held that the trial judge’s ruling was erroneous and that the appeal should be allowed.

The court allowed the appeal and set aside the applicant’s conviction. The court held that the trial judge’s ruling that the traffic offences were admissible in rebuttal of the applicant’s evidence of good character was erroneous. The court held that the traffic offences were completely irrelevant to the applicant’s character in relation to the sexual offences and could not be led in rebuttal. The court allowed the appeal and set aside the applicant’s conviction, ordering a re-trial.

Orders