SPA v The Queen

[2011] VSCA 306

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0201
SPA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and HANSEN JJA and JUDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 October 2011
DATE OF JUDGMENT:	7 October 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 306

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CRIMINAL LAW – Application for leave to appeal against interlocutory decision – Judge ruled evidence of four complainants cross-admissible as tendency and coincidence evidence – No error of principle – Ruling reasonably open – KJM v The Queen (No 2) [2011] VSCA 268 applied – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Backwell	Littleton Hackford & D’Alessandro
For the Respondent	Mr G J C Silbert SC with Ms A Moran	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

1. I invite Hansen JA to give the first judgment.

HANSEN JA:

1. This is an application for leave to appeal against an interlocutory decision of a judge in the County Court that tendency and coincidence evidence is admissible on all charges in Indictment Y02852643.  I mention the number of the indictment as in the same ruling the judge dealt with a separate indictment, Y02852643.1, involving other complainants in which she held that tendency and coincidence evidence is not admissible.  The Crown not having sought to appeal from that ruling, no question arises on this application as to the correctness or otherwise of the ruling on that second indictment.

1. The subject indictment with which the present application is concerned contains 25 charges concerning four complainants.  Except for one count of a threat to kill, all charges are sexual offences and some offences of violence committed against four female family members between 1970 and 1992.  The complainants are respectively a sister, two nieces and a daughter of the applicant.  The effect of the ruling is that their evidence is cross‑admissible at the trial.

1. The evidence proposed to be led is of charged and uncharged acts specified in separate tendency and coincidence notices. 

1. The judge records in her ruling that there was no real argument that the evidence was relevant to the fact in issue.  That was not surprising, given that the applicant denies that the offending occurred.

1. In her ruling the judge gave careful consideration to the submissions of counsel, noting that there were no differences between them as to the relevant principles, and analysed the proposed evidence and the issues that arose respectively under ss 97, 98 and 101 of the Evidence Act 2008. In accordance with the request of the County Court the ruling is attached to these reasons.

1. The applicant contends that the judge erred in ruling that the tendency and coincidence evidence is admissible.  That was said to be constituted by the following erroneous findings: 

(a)        that the similarities relied upon by the prosecution had significant probative value;

(b)        that the evidence of each complainant could be used by a jury to discern a pattern of behaviour; and

(c)        that the similarities relied upon were sufficient to make…