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10
Court of Criminal Appeal 7 March 2000

Regina v Vinh LE [2000] NSWCCA 49 revised - 14

[2000] NSWCCA 49

Sexual offencesAssault & violence

Citation: Regina v Vinh Le [2000] NSWCCA 49
Court: NSW Court of Criminal Appeal
Date: 7 March 2000
Judge(s): Sully J, Hulme J, Hidden J

Background

The appellant was tried in the District Court at Campbelltown before Tupman DCJ on twelve counts arising from a sustained course of conduct against three members of the same family over approximately six months in 1996. The victims were a widowed woman (Mrs HL), her twelve-year-old daughter (TP), and her four-year-old son (JP). The offences included sexual intercourse without consent, assault, acts of indecency, and sexual intercourse with a child under ten years.

The appellant had become a domestic boarder at Mrs HL's home in about August 1995 and later entered into a sexual relationship with her. After the family moved to rented premises in Lakemba in February 1996, the Crown alleged that the appellant engaged in a pattern of sexual and physical violence against all three victims at those premises.

The jury acquitted the appellant on two counts and convicted him on the remaining eight. He was sentenced to terms of penal servitude. No challenge to the sentences was pursued on appeal.

  • Whether the trial judge erred in admitting the evidence of the treating medical practitioner, Dr Anh Lang Mach
  • Whether the trial judge's directions to the jury on the use of Dr Mach's evidence were adequate
  • Whether complaint evidence from Miss TP was properly admitted
  • Whether complaint evidence from Mrs HL was properly admitted
  • Whether the jury directions on how to use both complaints were correct
  • Whether the trial judge erred in admitting tendency evidence (evidence of uncharged criminal acts)
  • Whether the jury directions on the use of tendency evidence were adequate
  • Whether the trial judge erred in relation to the forensic biology evidence of Mr Rudolf Weigner

Decision

Medical and complaint evidence: The Court found no reversible error in the admission of Dr Mach's evidence or in the directions given regarding it. On the complaint evidence, Hidden J added observations about the particular difficulty that arises under s 66 of the Evidence Act 1995 (NSW) in sexual cases involving a pattern of conduct rather than discrete incidents. His Honour concluded that complaint evidence covering a pattern of abuse over several months can properly be admitted under s 66, particularly where the pattern continued up to or near the time of complaint, and that each case turns on its own facts.

Tendency evidence: The Court considered the grounds relating to the admission of tendency evidence and the associated jury directions. Hulme J noted that there may be an appropriate case in the future for the Court to re-examine how far the common law principles in Pfennig v R (1995) 182 CLR 461 apply to s 101(2) of the Evidence Act, but concluded this was not that case. Notwithstanding identified errors in the trial, the Court assessed those errors against the overall weight of evidence and the directions given.

Application of the proviso: Both Hulme J and Sully J applied the proviso to s 6 of the Criminal Appeal Act, which allows a court to dismiss an appeal despite a trial error where no substantial miscarriage of justice has occurred. Hulme J described the case as a clear one for the proviso's application, given the weight of the evidence. Sully J proposed dismissal of the appeal, and both Hulme J and Hidden J agreed.

Weigner evidence: Hulme J agreed with Sully J's reasoning on the ground concerning the forensic biology evidence. No separate elaboration was provided by the other judges.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Complaint evidence under s 66 of the Evidence Act 1995 (NSW) is not necessarily inadmissible merely because it describes a pattern of conduct extending over several months rather than a single discrete incident, provided the pattern continued up to or near the time of the complaint.
  • Each case involving complaint evidence of prolonged abuse must be assessed on its own facts, with admissibility depending on the terms of the complaint and the duration of the alleged conduct.
  • In dismissing the appeal, the Court of Criminal Appeal applied the proviso to s 6 of the Criminal Appeal Act, finding that identified trial errors did not produce a substantial miscarriage of justice in light of the overall weight of evidence.
  • The relationship between the common law tendency evidence principles in Pfennig v R and s 101(2) of the Evidence Act was identified by Hulme J as a question potentially warranting future re-examination by the Court, but was left unresolved in this case.
  • Where multiple victims give evidence of a sustained course of conduct by the same accused, the cumulative weight of that evidence may provide a sufficient foundation for the proviso to operate even where individual trial errors are identified.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), particularly ss 66 and 101(2)
- Criminal Appeal Act (NSW), s 6 (the proviso)
- Criminal Appeal Rules

Cases:
- Graham v The Queen (1998) 157 CLR 404
- Reg v AH (1997) 42 NSWLR 702
- Pfennig v R (1995) 182 CLR 461
- Hoch v R (1988) 165 CLR 292
- Gipp v R (1998) 194 CLR 106
- Sutton v R (1983-84) 152 CLR 528
- Markby v R (1978) 140 CLR 108
- DPP v Boardman [1975] AC 421
- Harris v DPP [1952] AC 694
- Makin v AG (NSW) [1894] AC 57
- Martin v Osborne (1936) 55 CLR 367
- Shepherd v R (1990) 170 CLR 573
- R v Pantoja (unreported, CCA, 5 November 1998)
- R v Merritt [1999] NSWCCA 29
- R v Kotzmann [1992] 2 VR 123
- Penney v R (1998) 72 ALJR 1316