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SLS v The Queen

SLS v The Queen

Case [2014] VSCA 31 6 March 2014

Appeal

Admissibility of Evidence

Expert Evidence

Contempt of Court

Limitation Periods

Discovery & Disclosure

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0225
S APCR 2013 0236
S APCR 2013 0246
S APCR 2013 0262

S L S	Appellant
v
THE QUEEN	Respondent

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JUDGES	ashley, redliCH and priest jja
WHERE HELD	MELBOURNE
DATE OF HEARING	7 and 10 February 2014
DATE OF ORDERS	12 February 2014
Date of publication of reasons	6 March 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 31
JUDGMENT APPEALED FROM	DPP v [SLS] (Rulings 3, 5, 6, 11 and 13, County Court of Victoria (Judge Hampel)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Application for permanent stay refused – Long delay, but not simply presumptive prejudice – Destruction of evidence – Loss of evidence – Greatly limited ability to adduce alibi evidence – Whether judge erred by confining evidence of complainants on voir dire – Attack upon findings made and inferential reasoning of judge below – Appeal allowed – Decision refusing stay set aside – Matter remitted for re-hearing and determination by another judge.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling by judge that evidence of complainants cross-admissible – Whether reasonable possibility of collusion or contamination – Whether judge wrongly approached matter by treating applicant as carrying burden of proof – Whether judge erred by making findings upon matters of disputed fact – Whether judge failed to address facts inexorably leading to conclusion that reasonable possibility of collusion or contamination could not be excluded – Appeal allowed – Ruling set aside – In lieu, ruling that evidence not cross-admissible – Question whether indictment should be severed remitted for re-hearing and determination by another judge – Questions whether evidence of other witnesses constituted tendency evidence, and, if it was, should nonetheless be excluded, likewise remitted.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that expert evidence admissible that conduct of a hypothetical man behaving in the same way that the complainants and others alleged that the applicant had behaved (including conduct which constituted the charged acts) was (highly) consistent with ‘grooming’ by sex offenders – Concession by Crown on appeal that evidence inadmissible – Concession rightly made – s 79 Evidence Act 2008 – Whether witness had relevant expertise – Whether evidence had any probative value – Circularity – Whether, in any event, evidence should have been excluded under s 135 Evidence Act – Whether evidence was about a matter upon which expert evidence was receivable – Whether evidence would be tendency evidence admissible under s 97(1) Evidence Act – Whether, if so, evidence should have been excluded under s 101 – Whether unacceptable risk that evidence would trespass into propensity evidence – Whether, if so, evidence should have been excluded under s 135 or s 137 Evidence Act – Whether evidence admissible under s 108C Evidence Act.

CRIMINAL LAW – Appeal – Interlocutory Appeal – Peremptory ruling that counsel for accused should not be permitted to cross-examine complainant on content of confidential communication – No reasons given – Note made by counsellor…

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 SLS v The Queen

Details

AGLC: SLS v The Queen [2014] VSCA 31
Case: [2014] VSCA 31
Decision Date: 6 March 2014

CaseChat Overview and Summary

The matter before the court was an interlocutory appeal in a criminal case where the appellant, SLS, sought to challenge several rulings made by a lower court judge. The crux of the appeal was the contention that the judge had made several errors in ruling on the admissibility of evidence and in handling the overall management of the trial process. The High Court of Australia heard the appeal and found in favour of SLS on several points.

The primary legal issues before the court were whether the judge had erred in allowing certain evidence to be admitted, whether the judge had correctly applied the relevant evidentiary rules, and whether the judge had failed to address certain critical facts that should have excluded the possibility of collusion or contamination in the evidence. Specifically, the court had to determine whether the judge had correctly assessed the admissibility of cross-admissible evidence from complainants, the admissibility of expert evidence concerning 'grooming' by sex offenders, and the right of the accused to cross-examine a complainant on the content of confidential communications.

The court held that the judge had indeed made several errors. The judge had wrongly approached the issue of cross-admissible evidence by placing the burden of proof on the appellant. Additionally, the judge had made findings on matters of disputed fact without proper justification. The court also found that the judge had failed to consider the inextricable facts that should have excluded the possibility of collusion or contamination. Regarding the expert evidence, the court found that the evidence was inadmissible as it lacked probative value and risked trespassing into propensity evidence. The court further held that the peremptory refusal to allow the accused's counsel to cross-examine the complainant on the content of confidential communications was not in line with statutory obligations. Finally, the court ruled that the question of whether the prosecution could adduce certain historical evidence was to be remitted for re-hearing and determination by another judge.

The court allowed the appeal and set aside the rulings of the lower court judge on the admissibility of cross-admissible evidence, expert evidence, and the right to cross-examine a complainant. The court also set aside the ruling permitting the prosecution to adduce historical evidence and remitted these questions for re-hearing and determination by another judge. The matter was thus remitted for a re-hearing before a different judge to address these issues afresh.

Orders