Watson v the Queen - [2010] VSCA 189

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0599

JAMES HAMILTON WATSON
JAMES HAMILTON WATSON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and REDLICH JJA and BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 July 2010
DATE OF JUDGMENT:	26 July 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 189
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Patrick, 23 April 2009)

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CRIMINAL LAW – Conviction – Sexual offences with a child under 16 years – Child under care, supervision or control – Directions to jury – Several grounds of appeal relating to admission of evidence – Whether judge erred in directions regarding relevance and use of evidence of uncharged acts – Complaint made by complainant to relative – s 41D(2) Evidence Act 1958 – Relevance of lapse of time between offence and complaint – Appeal allowed – Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Victoria Legal Aid
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA
BEACH AJA:

Following a trial before the County Court at Melbourne, the applicant was convicted of one count of sexual penetration of a child under 16 under the care, supervision or control of the applicant (Count 1); and three counts of indecent act with a child under 16 (Counts 2, 3 and 4), for which he was sentenced to a total effective sentence of four years' imprisonment with a non-parole period of two years and nine months.

He now seeks leave to appeal against conviction on six proposed grounds of appeal as follows:

Ground 1–      The trial miscarried as a result of the admission of evidence relating to a complaint made by the complainant to a relative, BR.
Ground 2–      The trial miscarried as a result of the admission of evidence relating to a complaint made by the complainant to her mother, RT.
Ground 3–      The trial miscarried as a result of directions given by the judge to the jury as to the use which they might make of the evidence of the complainants made by the complainant to BR and RT.
Ground 4–      The trial miscarried as a result of the admission of evidence of uncharged acts.
Ground 5–      The trial miscarried as a result of the failure of the judge to direct the jury as to the relevance and use which might be made of the evidence of uncharged acts.
Ground 6–      The trial miscarried as a result of the prosecutor cross-examining the applicant as to whether he had during Family Court proceedings relating to the custody of his child denied allegations that he had committed the offences with which he was charged.

Grounds 1 and 3 – Complaint to BR

We begin with Ground 1. In the course of her VATE tape, the infant witness BR was asked among other things the following questions to which she gave the following answers:

30. Okay. And this day that [the complainant] told you about Jamie - -…

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 Watson v the Queen

Details

AGLC: Watson v the Queen [2010] VSCA 189
Case: [2010] VSCA 189
Decision Date: 26 July 2010

CaseChat Overview and Summary

The case of Watson v the Queen involved a conviction for sexual offences committed against a child under the age of sixteen. The accused appealed against the conviction, raising several grounds of appeal that primarily concerned the admission of evidence and the judge's directions to the jury regarding this evidence. The appeal was heard and determined by the court.

The legal issues that the court had to decide included whether the judge erred in giving directions to the jury about the relevance and use of evidence of uncharged acts, the admissibility of a complaint made by the complainant to a relative, and the relevance of the time elapsed between the offence and the complaint under section 41D(2) of the Evidence Act 1958. The accused argued that the evidence was not relevant and prejudicial, and that the judge's directions to the jury were misconceived and likely to have affected the outcome of the trial.

The court found that the judge had indeed erred in his directions to the jury regarding the relevance and use of the evidence of uncharged acts. The court held that the judge's directions were misconceived and had the potential to mislead the jury, which could have affected the outcome of the trial. The court also found that the complaint made by the complainant to a relative was admissible under section 41D(2) of the Evidence Act 1958, as it was relevant to the issue of the complainant's state of mind at the time of the offence. However, the court held that the judge had failed to give proper directions to the jury regarding the relevance of the lapse of time between the offence and the complaint. The court concluded that the errors made by the judge were not trivial or insignificant, and that they had a substantial and injurious effect or influence on the determination of the appeal. The appeal was allowed, and a re-trial was ordered.

Orders