W S J v The Queen - [2010] VSCA 339

SUPREME COURT OF VICTORIA

COURT OF APPEAL

WSJ	S APCR 2009 0799
WSJ	Applicant
v
THE QUEEN	Respondent

---

JUDGES	BUCHANAN, REDLICH and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 July 2010
DATE OF ORDERS	15 July 2010
DATE OF REASONS	15 December 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 339
JUDGMENT APPEALED FROM	R v WSJ (Unreported, County Court of Victoria, Judge Jenkins, 27 August 2009)

---

CRIMINAL LAW – Conviction – Three counts of committing an indecent act with a child under 16 years – Complainant subject to persistent sexual abuse by applicant’s brother – Identifying witness was familiar with the applicant – Whether need for full direction as to unreliability of identification evidence – Whether identification warning undermined by trial judge’s comments – Delay in making complaint – Counsel wrongly prohibited from cross-examining or addressing the jury as to delay – s 61 Crimes Act 1958 (Vic) – Prior representations by complainant as to the alleged conduct of the applicant – Representations inconsistent with complainant’s account – Error to admit – s 41D Evidence Act 1958 (Vic) – s 66 Uniform Evidence Act considered – Relevance of lapse of time between the alleged offending and the making of the representation – Representation admitted only as going to the complainant’s credibility and not as proof of the truth of the facts asserted – Failure to warn jury that not original evidence – Misdirection – Appeal allowed – Retrial ordered

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr J Sutton	Revill & Papa Lawyers
For the Crown	Mr J D McArdle QC Ms D I Piekusis	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Redlich JA.

REDLICH JA:

The applicant faced a presentment in the County Court at Melbourne containing three counts of committing an indecent act with a child under 16 years and one count of incest. The complainant was the applicant’s stepdaughter. All of the charges arose out of a single occasion alleged to have occurred in 2006. The applicant pleaded not guilty to all charges. For reasons that are presently irrelevant, the jury was discharged before verdict (the first trial). The second trial commenced immediately after the discharge of the jury in the first trial. The applicant was acquitted on the count of incest and was convicted on each of the three counts of committing an indecent act with a child. He received a total effective sentence of 22 months’ imprisonment with a non-parole period of 15 months. He sought leave to appeal against his conviction.

After hearing the appeal on 15 July 2010 the Court ordered that the appeal be allowed, quashed the convictions and directed that a new trial be had. Since the Court pronounced those orders and prior to publishing its reasons, the Court was advised that the Director of Public Prosecutions had entered a nolle prosequi. As no further trial is to be had, the reasons which follow are confined to those grounds upon which senior counsel…

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 W S J v The Queen

Details

AGLC: W S J v The Queen [2010] VSCA 339
Case: [2010] VSCA 339
Decision Date: 15 July 2010

CaseChat Overview and Summary

In the High Court of Australia, the case of W S J v The Queen involved the appellant, who had been convicted on three counts of committing an indecent act with a child under 16 years. The complainant in the case had been subject to persistent sexual abuse by the appellant's brother, and the identifying witness was familiar with the appellant. The central legal issues were whether the trial judge had adequately directed the jury on the unreliability of identification evidence and whether the judge's comments had undermined the identification warning. Furthermore, the court had to consider the effect of a delay in making the complaint, and whether counsel had been wrongly prohibited from cross-examining or addressing the jury regarding this delay.

The court held that the trial judge did not provide a full direction on the unreliability of identification evidence due to the familiarity of the witness with the appellant. The judge's comments were also seen to undermine the identification warning. Additionally, the court found that counsel had been wrongly prohibited from cross-examining or addressing the jury about the delay in making the complaint, contrary to the provisions of s 61 of the Crimes Act 1958 (Vic). Regarding the prior inconsistent representations by the complainant, the court determined that there was an error in admitting them as evidence under s 41D of the Evidence Act 1958 (Vic). The court considered the relevance of the lapse of time between the alleged offending and the making of the representation, concluding that the representations were admitted only to challenge the complainant's credibility, not to prove the truth of the facts asserted. The failure to warn the jury that these were not original evidence constituted a misdirection.

Consequently, the High Court allowed the appeal and ordered a retrial. The appellant's conviction was quashed, and the case was remitted for a new trial to ensure that all legal principles were correctly applied and that the jury was properly directed on all matters of law and evidence.

Orders