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Ulutui v The Queen

Ulutui v The Queen

Case [2014] VSCA 110 4 June 2014

Admissibility of Evidence

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0108
PETER ULUTUI	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NEAVE, REDLICH and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 February 2014
DATE OF JUDGMENT:	4 June 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 110
JUDGMENT APPEALED FROM:	DPP v Ulutui (Unreported, County Court of Victoria, Judge Chettle, 19 October 2012 (date of conviction))

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CRIMINAL LAW – Whether admission of evidence of appellant’s participation in a prior assault should have been excluded under s 137 of the Evidence Act 2008 (Vic) – Prior assault provided motive for and inextricably linked to offences charged – Appellant bound by rational forensic decision of counsel not to object to admission of evidence – Nudd v The Queen (2006) 80 ALJR 614; Suresh v The Queen (1998) 102 A Crim R 18; and James v The Queen [2013] VSCA 55, followed – Appeal dismissed.

CRIMINAL LAW – Whether admission of evidence of appellant’s participation in a prior assault controverted the appellant’s acquittal for that assault – Fact of acquittal not placed in evidence – No manifest inconsistency between evidence adduced and the fact of the appellant’s acquittal – Whether trial judge erred in failing to direct the jury that it could not reach a conclusion that the appellant was guilty of the prior assault – Storey v The Queen (1978) 140 CLR 364; R v Carroll (2002) 213 CLR 635; Gilham v The Queen (2012) 224 A Crim R 22; R v VN (2006) 15 VR 113; and Washer v Western Australia (2007) 234 CLR 492, followed.

CRIMINAL LAW – Whether trial judge erred in failing to give an anti-propensity warning in relation to the evidence of appellant’s participation in the prior assault – No requirement to give an anti-propensity warning where there is minimal or non-existent risk of evidence being used for propensity reasoning – R v Georgiev (2001) 119 A Crim R 363; Conway v The Queen (2000) 98 FCR 204; and FDP v The Queen (2008) 74 NSWLR 645, followed.

CRIMINAL LAW – Kidnapping – Whether directions to jury impermissibly expanded Crown case – Whether kidnapping is a continuing offence – Davis v The Queen [2006] NSWCCA 392 and R v Vu [2011] BCCA 112, followed – Leave to appeal refused.

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APPEARANCES:

Counsel

Solicitors

For the Appellant

Mr J McLoughlin

Victoria Legal Aid

For the Crown

Mr D A Trapnell QC

Mr C Hyland,

Solicitor for Public Prosecutions

NEAVE JA:

I have had the advantage of reading the reasons of Redlich JA and I agree, for the reasons that his Honour gives, that the appeal should be dismissed and the application should be refused.

REDLICH JA:

Following a trial in the County Court the appellant was convicted on one charge of kidnapping, one charge of recklessly causing injury, two charges of threat to kill, one charge of false imprisonment, one charge of blackmail and one charge of intentionally causing injury.…

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 Ulutui v The Queen

Details

AGLC: Ulutui v The Queen [2014] VSCA 110
Case: [2014] VSCA 110
Decision Date: 4 June 2014

CaseChat Overview and Summary

In Ulutui v The Queen, the appellant challenged his convictions for various serious offences, including assault occasioning actual bodily harm, deprivation of liberty, and kidnapping. The case was heard in the Victorian Court of Appeal. The central dispute was the admissibility of evidence concerning the appellant's involvement in a prior assault, which the prosecution argued was relevant to the motive and nature of the charged offences.

The court was tasked with determining whether the admission of the prior assault evidence should have been precluded under section 137 of the Evidence Act 2008 (Vic). Additionally, the court had to decide if the admission of this evidence contravened the appellant's acquittal for that prior assault and whether the trial judge should have directed the jury on the matter. The court also needed to assess if the trial judge erred in not providing an anti-propensity warning in relation to the prior assault evidence. Finally, the court considered whether the trial judge's directions to the jury about the nature of kidnapping were correct.

The Court of Appeal found that the evidence of the prior assault was inextricably linked to the charged offences and provided a motive, thereby satisfying the criteria for admissibility under section 137. The court held that the appellant was bound by his counsel's strategic decision not to object to the evidence and thus the admission was justified. The court also determined that there was no manifest inconsistency between the evidence and the appellant's acquittal for the prior assault. Furthermore, the court ruled that there was no requirement for an anti-propensity warning as the risk of the evidence being used for propensity reasoning was minimal. The court ultimately found no error in the trial judge's directions to the jury regarding the nature of kidnapping. Consequently, the appeal was dismissed, and leave to appeal to the High Court was refused.

Orders