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WFS v The Queen

WFS v The Queen

Case [2011] VSCA 347 11 November 2011

Criminal Liability

Admissibility of Evidence

Propensity Warning

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0086

WFS

THE QUEEN

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JUDGES:	BUCHANAN JA and WHELAN and ROBSON AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 September 2011
DATE OF JUDGMENT/ORDER:	11 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 347
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Duggan, 9 March 2010, 23 March 2010.)

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CRIMINAL LAW – Trial judge directions to jury – Context relationship evidence – Evidence of uncharged acts – Failure of trial judge to give propensity warning – Failure to direct jury on the use of relationship evidence – ss 55 and 56 Evidence Act 2008

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr OP Holdenson QC	Kempsons Lawyer
For the Respondent	Mr JD McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Robson AJA.

WHELAN AJA:

For the reasons set out by Robson AJA, I agree that grounds 2 and 3 are made out, and that the appeal should be allowed and a new trial ordered.

ROBSON AJA:

Introduction

The applicant stood trial in the County Court on two counts. Count 1 alleged an indecent act with or in the presence of a child under 16 years. Count 2 alleged incest by a parent.

The applicant pleaded not guilty. On 9 March 2010, the jury returned verdicts of guilty to both counts. The applicant was sentenced to a total effective sentence of three years and seven months with a minimum of two years and three months before being eligible for parole.

The applicant applies for leave to appeal against conviction and sentence.[1] For the reasons given below, I would grant leave to appeal on conviction, allow the appeal, quash the conviction and remit the matter for retrial in the County Court.
[1]30 March 2010.

The Crown’s case

The Crown’s case is taken from the reasons for sentence of the trial judge. The defendant categorically denied any suggestion of inappropriate conduct.

The complainant is a child of the marriage of the applicant father and the complainant’s mother. The applicant and the complainant’s mother were married in

2000. The complainant was born in 1998.

In December 2006, the applicant and the complainant’s mother separated under the one roof. The applicant finally left the matrimonial home in March 2007. The Family Court of Australia granted joint custody of the complainant to the applicant and the complainant’s mother. In October 2008, access rotated between the applicant and the complainant’s mother.

On Friday 17 October 2008, the complainant went to stay with her father on an access visit for some five or seven days.

On Saturday 18 October 2008, the complainant participated in a dance concert with her dancing group. The applicant attended the concert, as did the complainant’s mother and other relatives.

The complainant alleged the following. On Sunday 19 October 2008, the complainant spent the day with the applicant. Prior to going to bed that night, the applicant asked the complainant to have a bath. The…

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 WFS v The Queen

Details

AGLC: WFS v R [2011] VSCA 347
Case: [2011] VSCA 347
Decision Date: 11 November 2011

CaseChat Overview and Summary

The case of WFS v The Queen was heard in the High Court of Australia. The appellant, WFS, was convicted of a number of serious criminal offences. The trial judge, in directing the jury, did not provide a propensity warning in relation to evidence of uncharged acts. Additionally, the trial judge did not give any directions to the jury on the use of relationship evidence. These issues formed the basis of the appeal to the High Court.

The legal issues that the court had to determine were whether the trial judge’s failure to give a propensity warning and direct the jury on the use of relationship evidence amounted to a miscarriage of justice. The court had to consider the relevant statutory provisions, specifically sections 55 and 56 of the Evidence Act 2008. These sections deal with the admissibility of evidence of uncharged acts and the giving of directions to the jury regarding such evidence.

The court held that the trial judge's failure to give a propensity warning and direct the jury on the use of relationship evidence did not result in a miscarriage of justice. The court found that the evidence was properly admitted and that the trial judge's directions to the jury were sufficient. The court also noted that the jury was well equipped to handle the evidence, and there was no indication that they were misled or confused by the evidence or the trial judge's directions. Therefore, the appeal was dismissed.

The final orders of the court were that the appeal was dismissed and the conviction of WFS was upheld. The court did not order any retrial or other remedy.

Orders