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Wilson v R

Wilson v R

Case [2011] VSCA 328 27 October 2011

Admissibility of Evidence

Cross-admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0882
MICHAEL WILSON	Applicant
v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, REDLICH JA and KYROU AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 March 2011
DATE OF JUDGMENT	27 October 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 328
JUDGMENT APPEALED FROM	R v Wilson (Unreported, County Court of Victoria, Judge Gaynor, 2 May 2008 (verdict))

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CRIMINAL LAW – Appeal – Conviction – Rape – Indecent assault – Multiple counts –Offences occurred in course of applicant’s practice as naturopath – Complainants were applicant’s patients – Whether applicant aware of absence of consent – Reasonableness of applicant’s belief in consent – Awareness that complainants were or might have been mistaken about whether the acts were sexual acts or were for medical purposes – Whether impugned acts were performed for purposes of providing legitimate medical treatment – Whether touching accidental – Jury directions deficient – Appeal allowed in part – Retrial ordered – Resentenced on remaining counts – Neal v The Queen [2011] VSCA 172, Getachew v The Queen [2011] VSCA 164, Roberts v The Queen [2011] VSCA 162, followed – Crimes Act 1958, ss 35, 36(f), (g), 37, 37AAA(d), (e)(i), (e)(ii) and 37AA(b)(i).

CRIMINAL LAW – Appeal – Conviction – Rape – Indecent assault – Uncharged acts – Trial judge failed to direct jury that complainant’s evidence of uncharged acts must be proved beyond reasonable doubt – Consideration of circumstances in which trial judge required to direct jury that circumstantial facts should be proved to a particular standard – R v Sadler (2008) 20 VR 69 considered, Roach v The Queen [2011] HCA 12 (4 May 2011), HML v The Queen (2008) 235 CLR 334, referred to.

EVIDENCE – Criminal law – Rape – Indecent assault – Cross-admissibility of evidence – Multiple counts of rape and indecent assault involving four complainants – Whether sexual acts performed in the course of a sexual relationship – High degree of similarity, common theme – Application for severance properly rejected by trial judge – Phillips v The Queen (2006) 225 CLR 303, applied, R v Papamitrou (2004) 7 VR 375, followed.

LAW REFORM – Sexual offences – Complexity of trial directions required to be given – Legislative intervention required to simplify required directions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Boyce	Victoria Legal Aid
For the Crown	Mr O P Holdenson QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons of Redlich JA and Kyrou AJA. I agree with the disposition of the appeal which their Honours propose, for the reasons which they give.

The issues raised by this appeal serve as a salutary reminder of the urgent need for legislative simplification of jury directions. As their Honours’ detailed exposition reveals, the law governing the trial of sexual offences is now so extraordinarily complex as to throw into doubt the expectations on which 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 Wilson v R

Details

AGLC: Wilson v The Queen [2011] VSCA 328
Case: [2011] VSCA 328
Decision Date: 27 October 2011

CaseChat Overview and Summary

In the case of Wilson v R, the appellant, a naturopath, appealed against his convictions for multiple counts of rape and indecent assault committed against patients during the course of his practice. The Supreme Court of Victoria was tasked with reviewing the legal sufficiency of the evidence and the adequacy of the jury directions provided during the trial. The appellant argued that his actions were part of legitimate medical treatment and that the complainants might have been mistaken about the nature of the acts.

The primary legal issues were whether the appellant was aware of the absence of consent from his patients and whether his belief in their consent was reasonable. Additionally, the court had to determine whether the acts were accidental or performed for legitimate medical purposes. The appellant's counsel also contended that the jury directions on the standard of proof for uncharged acts were deficient. The court examined these issues in light of previous cases such as Neal v The Queen, Getachew v The Queen, and Roberts v The Queen.

The court found that the jury directions regarding the standard of proof for uncharged acts were inadequate, which led to the partial allowance of the appeal. The trial judge had failed to direct the jury that the complainant's evidence of uncharged acts must be proved beyond reasonable doubt. The court held that the evidence of uncharged acts was properly admitted due to the high degree of similarity and common theme across the charges. The court followed precedents from Phillips v The Queen and R v Papamitrou in upholding the trial judge's decision to reject the application for severance. Consequently, the appeal was partially allowed, and a retrial was ordered for the counts where the jury directions were deficient. The appellant was to be resentenced on the remaining counts.

Orders