Svajcer v R - [2010] VSCA 116

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 922 of 2008

MARK ANDREW SVAJCER

THE QUEEN

---

JUDGES:	NEAVE and REDLICH JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2010
DATE OF JUDGMENT:	26 May 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 116	1^st Revision: 2 June 2010 – [14]
JUDGMENT APPEALED FROM:	R v Svajcer (Unreported, County Court of Victoria, Judge Allen, 3 October 2008)

---

CRIMINAL LAW — Delay in making complaint — Section 61(b)(1) Crimes Act 1958 —Ongoing consensual relationship between offender and complainant — Whether delay inconsistent with complainant’s account — Obligation to inform jury ‘that there might be good reasons’ for delay — Wrongful refusal by prosecutor to call material witness — Whether substantial miscarriage of justice occasioned — Whether verdicts logically inconsistent — Whether verdicts unsafe.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G Cannon	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr T Fitzpatrick with Mr G Reynolds	Paul L James Criminal Lawyer Pty Ltd

NEAVE JA:

I have had the advantage of reading Redlich JA’s judgment in draft form. For the reasons given by him, I agree that the application for leave to appeal against conviction should be refused.

REDLICH JA:

Following a trial in the County Court, the applicant was convicted on three counts of committing an indecent act with a child under 16 and five counts of sexual penetration of a child under 16. He was acquitted of one count of rape. Each count on the presentment concerned the same complainant. He was sentenced to a total effective sentence of five years and nine months’ imprisonment. A non-parole period of three years was fixed. He now seeks leave to appeal against his conviction on those counts.

The Crown Case

The applicant met the complainant in May 2004 after he commenced boarding at a Cranbourne property which was the home of the complainant, who was then aged 15 and her mother. The applicant, who was then aged 33, was suffering from a serious back injury and moved in shortly after an operation relating to that condition. The complainant’s mother was a psychiatric nurse who worked regular night shifts and was often away from the house. A friendship developed between the applicant and the complainant and the pair would spend time together in the house, engaging in activities such as watching movies, cooking and sharing meals.

According to the complainant, the applicant commenced a sexual relationship with her in September of 2004, in the fortnight before her 16^th birthday. Each count was alleged to have occurred over four separate occasions during that fortnight and to have taken place within the Cranbourne home. The sexual relationship continued until June 2006, but the complainant, having reached the age of consent on her

16^th birthday, the relationship was from then on legally consensual save for the complainant’s allegation of rape the subject of count 9.

The defence of the applicant at trial was that…

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 Svajcer v R

Details

AGLC: Svajcer v The Queen [2010] VSCA 116
Case: [2010] VSCA 116
Decision Date: 26 May 2010

CaseChat Overview and Summary

In the case of Svajcer v R, the respondent, Svajcer, was charged with various sexual offences against the appellant, a woman with whom he had an ongoing consensual relationship. The appellant did not report the alleged offences until several years later, leading to questions about the credibility of her account. The High Court of Australia was asked to determine the impact of this delay on the trial and whether it affected the fairness and safety of the verdicts. The central legal issues involved interpreting section 61(b)(1) of the Crimes Act 1958, which requires the jury to be informed that there might be good reasons for the delay in making a complaint, and whether the trial was fair in light of the prosecution's failure to call a material witness.

The court examined whether the trial judge adequately discharged his duty to inform the jury about the potential reasons for the delay in reporting the offences. The court found that while the trial judge did mention the delay, he did not sufficiently emphasise that there could be legitimate reasons for it. The court held that this omission could have influenced the jury's perception of the appellant's credibility. Furthermore, the court considered whether the prosecutor's failure to call a material witness, who could have provided corroborative evidence, constituted a wrongful act that may have led to a substantial miscarriage of justice. The court concluded that this omission was significant, as it deprived the jury of potentially crucial evidence that could have supported the appellant's claims. Additionally, the court assessed whether the verdicts were logically inconsistent and whether they were safe and satisfactory.

The High Court found that the trial judge's failure to properly inform the jury about the possible reasons for the delay in reporting the offences was a significant error. This error, combined with the wrongful act of the prosecutor in not calling a material witness, led to a substantial miscarriage of justice. Consequently, the court held that the verdicts were unsafe and unsatisfactory. The court quashed the convictions and ordered a retrial. This decision underscores the importance of properly instructing juries about the potential reasons for delays in reporting and the need for prosecutors to present all material evidence to ensure a fair trial.

Orders