CRIMINAL LAW – Trial – Failure to object to evidence – Whether tendency evidence – Whether words ‘is not admissible’ in Evidence Act 2008 (Vic) s 97 should be construed as ‘is not admissible over objection’ – R v Reid [1999] NSWCCA 258; Gonzales v The Queen (2007) 178 A Crim R 232; FDP v The Queen (2008) 74 NSWLR 645, considered – Deliberate decision for forensic reasons not to object – R v Radford (1993) 66 A Crim R 210; Shaw v The Queen (Unreported, Court of Criminal Appeal (NSW), Gleeson CJ, Dowd and Hidden JJ, 3 April 1996); R v…
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.
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AGLC
Velkoski v The Queen [2014] VSCA 121
Case
[2014] VSCA 121
Decision Date
CaseChat Overview and Summary
In the matter of Velkoski v The Queen, the Court of Appeal of Victoria examined the admissibility of tendency evidence and the adequacy of jury directions in a criminal trial. The appellant was convicted of various sexual offences, and the case was brought to the Court of Appeal on several grounds, including the admission of evidence from multiple complainants and the jury directions provided by the trial judge.
The primary legal issues addressed by the court were whether the tendency evidence was properly admitted and whether the jury directions were sufficient to guide the jury in considering this evidence. The court also considered whether the appellant's failure to object to the evidence should be treated as a waiver and if the trial judge had a duty to intervene. Furthermore, the court examined the application of the hearsay exception under the Criminal Procedure Act 2009 (Vic) and whether the verdicts were unsafe or unsatisfactory.
The Court of Appeal found that the trial judge had erred in admitting the evidence of multiple complainants without adequate consideration of cross-admissibility under the Evidence Act 2008 (Vic). The court also determined that the jury directions were inadequate in explaining the relevance and weight of the tendency evidence. Consequently, the court concluded that the appellant's failure to object did not constitute a waiver and that the trial judge was not under a duty to intervene. Additionally, the court held that the hearsay exception was misapplied, leading to the exclusion of relevant evidence. Finally, the court found that the verdicts on certain charges were unsafe and unsatisfactory, leading to an acquittal on those charges.
The Court of Appeal granted leave to add a new ground of appeal, allowed the appeal in part, and set aside the convictions on all counts. The court ordered a retrial on specified charges and directed that the appellant be retried on those charges.
Orders
Orders of the court
We would grant leave to add Ground 6, grant leave to appeal on that ground and allow the appeal. The convictions on all counts must be set aside. We would grant leave to appeal as to Ground 1, allow the appeal in part and enter a verdict of acquittal on Charges 3 and 11. We would direct that the applicant be retried on Charges 2, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15 and 16.