Slater v The Queen

Case [2020] VSCA 270

SUPREME COURT OF VICTORIA  

COURT OF APPEAL

S APCR 2019 0130

ROBBIE KEITH SLATER (a pseudonym)[1] Applicant

v

THE QUEEN

Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES: PRIEST, BEACH and T FORREST JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 1 October 2020
DATE OF JUDGMENT: 22 October 2020
MEDIUM NEUTRAL CITATION: [2020] VSCA 270
JUDGMENT APPEALED FROM: DPP v [Slater] (Unreported, County Court of Victoria, Judge Wraight, 9 November 2018) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Indecent act with a child under 16, incest, rape and other offences – Whether defence counsel incompetent – Whether failure to cross-examine witnesses on discrepancies and inconsistencies incompetent – Cross-examination on peripheral discrepancies discouraged – Forensic disadvantage and propensity warnings not requested by counsel – Whether trial judge erred in failing to find substantial and compelling reasons to give forensic disadvantage or propensity warning – Leave to appeal refused – Anile v The Queen [2018] VSCA 235; TKWJ v The Queen (2002) 212 CLR 124; R v Grech [1997] 2 VR 609; Pell v The Queen (2020) 376 ALR 478 considered.

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APPEARANCES: Counsel Solicitors
For the Applicant Mr S Gillespie-Jones Ferraro, Pruscino & Co
For the Respondent   Mr P Bourke SC with
Mr P Smallwood 		Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Convictions and grounds of appeal

  1. An indictment filed in the County Court charged the applicant with committing an indecent act with a child under 16[2] (22 charges – charges 1 to 13, 17 to 20, 22 and 23, and 28 to 30); incest[3] (four charges – charges 14 to 16, and 24); rape[4] (one charge – charge 21); making a threat to inflict serious injury[5] (one charge – charge 27); and committing an indecent act with a 16 or 17 year old child[6] (two charges – charges 25 and 26).

    [2]Crimes Act 1958, s 47(1).

    [3]Crimes Act 1958, s 44(2).

    [4]Crimes Act 1958, s 31(1).

    [5]Crimes Act 1958, s 21.

    [6]Crimes Act 1958, s 49(1).

  1. The indictment spanned a period from 1 January 2003 to 7 February 2012, and related to four child complainants, ‘JN’, ‘AN’, ‘SN’ and ‘KN’.  The four children belonged to ‘CN’, a woman with whom the applicant formed a relationship in about June 2004.  JN and AN are male; and SN and KN are female.  Further, most of the charges concerned two locations: first, a house in a rural town north of Melbourne (‘the first address’); and secondly, a farm outside a town situated in relatively close proximity to the first  (‘the second address’ or ‘the farm’).

  1. On 30 October 2018, a jury empanelled to try the applicant was discharged without verdict.  The next day, 31 October 2018, the applicant’s trial commenced before a second jury.

  1. At the…

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Slater (a pseudonym) v The Queen [2020] VSCA 270
Case
[2020] VSCA 270
Decision Date

CaseChat Overview and Summary

In the case of Slater v The Queen, the appellant sought leave to appeal his conviction for multiple serious sexual offences, including indecent acts with a child under 16, incest, and rape. The appeal centred on the effectiveness of the defence counsel and the trial judge's handling of certain evidentiary issues. The Supreme Court of Victoria was tasked with determining whether the defence counsel's performance was incompetent, particularly regarding the failure to cross-examine witnesses on discrepancies and inconsistencies, and whether the trial judge erred in not issuing certain warnings to the jury.

The central legal issues in this case involved the adequacy of the defence counsel's performance and the trial judge's duty to issue warnings concerning the use of certain types of evidence. The appellant argued that his counsel was incompetent for not cross-examining witnesses on discrepancies and inconsistencies, which could have challenged the prosecution's case. Additionally, the appellant contended that the trial judge should have issued a propensity warning, similar to that in Grech, even though no such request was made by counsel. The court needed to consider whether such a warning was necessary and whether the failure to issue it constituted a substantial miscarriage of justice.

The court thoroughly examined the arguments presented, noting that the trial judge had already given comprehensive directions to the jury to mitigate any prejudicial effects of the evidence presented. The judge had explicitly instructed the jury not to convict based on prejudice or sympathy and to consider the evidence solely for the limited purpose of showing the appellant's tendencies. The court found that any additional propensity warning would likely have confused the jury, as it would have contradicted the instructions already given. Consequently, the court concluded that there was no substantial miscarriage of justice, and the failure to request or issue a propensity warning did not render the trial unfair.

Ultimately, the court denied the appellant's application for leave to appeal, finding no substantial miscarriage of justice in the conduct of the trial or the performance of the defence counsel. The reasoning and extensive directions provided by the trial judge were deemed sufficient to protect the appellant's rights, and no grounds for appeal were substantiated.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Where ‘other misconduct evidence’[38] — ‘other than tendency evidence’ — is adduced by the prosecution, s 27(1) permits defence counsel to request a direction under s 12. If such a direction is requested, s 27(2)(c) provides (among the other things set out in the subsection) that the judge must ‘direct the jury that it must not decide the case based on prejudice arising from what the jury has heard about the accused’.[38]Section 26 provides:other misconduct evidence means —(a) coincidence evidence; or (b) tendency evidence; or (c) evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue; or (d) evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed; … Since the prosecution relied on tendency evidence in the applicant’s trial, given its clear terms, there was no — or, at least, very little — scope for s 27(1) to operate. Nevertheless, it is clear that the judge was astute to give a number of directions designed to ameliorate the risk of improper reasoning. Thus, in his initial directions, having told the jury that the prosecution relied on tendency evidence, the judge directed that[39] Further, in his charge, the judge instructed the jury that they Returning to the topic of tendency evidence, the judge directed the jury as follows: A number of things may be drawn from the judge’s directions. First, he directed the jury that a finding that the applicant had the relevant tendency was ‘not enough to convict’. Secondly, he instructed the jury that the evidence on each charge must be considered separately, and that a finding that the applicant had the tendency alleged does not ‘mean that he did commit them’. Thirdly, the judge specifically told the jury that the relevant evidence was ‘only led for that limited purpose of showing that tendency’, and the jury ‘must not’ decide the case on the basis of sympathy or prejudice. Fourthly, the judge directed the jury that the tendency evidence could only be used for the ‘limited purpose of showing [the applicant’s] tendency to have a particular state of mind’, and that they ‘must not use the evidence for any other purpose’. Despite these directions, the applicant’s counsel in this Court maintained that the judge should have found that there were ‘substantial and compelling reasons’ for giving a Grech style propensity direction, even though no request for a direction was made. The failure to give such a direction, counsel submitted, has occasioned a substantial miscarriage of justice. Approaching the second aspect of ground 2 for the sake of argument on the basis that a Grech direction could theoretically have been given,[40] I consider that the jury would very likely have been completely bemused by such a direction. Indeed, even the most able logician — attempting faithfully to apply a judge’s instructions — would be bewildered by a direction warning that evidence could not be used to reason that the applicant was the kind of person likely to have committed the offences charged, which was to be applied in parallel with a direction that the same evidence could legitimately be used to reason that the applicant had a tendency to have a particular state of mind. A Grech direction warns the jury not to infer from the evidence that the accused is the kind of person who is likely to have committed the offence charged, yet tendency evidence is used to prove that a person has (or had) a tendency to act in a particular way, or to have a particular state of mind.[41] As Gageler J put it in Hughes:[42]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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