Murray Torcetti Lawyers are criminal lawyers in Caboolture. We write our own case notes from recent criminal decisions for internal purposes.
However, unlike your annoying sibling, we don’t mind sharing.
Appeal after a conviction of sexual assault, four grounds were advanced only two were considered
- Similar fact evidence
- Directions about the use of evidence from a witness
Facts: The appellant offered the complainant a lift home from the valley late at night. The parties were not known to each other, the complainant had been drinking heavily and thought he was flagging down an Uber.
The assault was particularised as touching of the complainant in the area of his penis without consent.
The appellant gave evidence of a sexualised discussion but did not accept there was any touching.
The appellant gave evidence at trial that he would drive around late at night roughly four or six times a month and would occasionally give drunk people lifts home.
The prosecution led evidence from two other witnesses where the appellant had picked up other men, driven to a destination and engaged in sexualised conversation during the travel. Neither of those witnesses were inappropriately touched on those occasions.
The Crown relied on these witnesses for similar fact evidence. The court found the evidence could be led. However, the routine directions given regarding similar fact evidence were insufficient to overcome impermissible use of the evidence by the other witnesses.
Finding: The court ordered a retrial of the matters, noting if the crown is to rely on what amounts to bad character of the appellant, the bad character is irrelevant to the determination of the jury of the appellant guilty for the offence charged. Further warnings ought to be given against general propensity on the basis of bad character.
Notes for practice:
- Court outlines use of similar fact evidence.
- Consider how far the propensity evidence takes the crown.
- Where propensity evidence is led, consider additional jury directions above standard directions.
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