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
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).
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’).
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.
At the…
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- AGLC
- Slater (a pseudonym) v The Queen [2020] VSCA 270
- Case
- [2020] VSCA 270
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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