Crofts v The Queen [1996] HCA 22

High Court of Australia Dawson, Toohey, Gaudron, Gummow and Kirby JJ Crofts v The Queen [1996] HCA 22

ORDER

1. Appeal allowed.

2. Set aside the order of the Victorian Court of Criminal Appeal and in lieu thereof order that the appeal to that Court be allowed, the appellant's convictions be quashed and a new trial be held.

The following written reasons for judgment were published:—

10 October 1996 Dawson J.

The appellant was convicted on 3 February 1995 upon one count of committing an indecent act with a child under the age of sixteen years and four counts of sexual penetration of a child between the ages of ten and sixteen years. He was acquitted upon eight counts of a similar nature. Each count involved the same complainant. The five offences of which the appellant was convicted were alleged to have been committed between 12 September 1991 and 16 May 1992, the latter being the complainant's sixteenth birthday.

Two grounds of appeal were argued by the appellant. The first was that the trial judge erred in failing to discharge the jury after inadmissible evidence was elicited by the prosecutor in re-examination of the complainant. The second was that the trial judge failed to direct the jury that the absence of recent complaint might be considered by them in assessing the credibility of the complainant.

The first ground may be disposed of shortly. Apart from the offences with which the appellant was charged, the complainant maintained that she was the victim of other sexual offences committed by the appellant over a considerable period of time. The trial judge ruled that evidence of these other offences was inadmissible under the rules governing the admissibility of propensity evidence. He recognised the danger of the emergence of such evidence in the course of the trial, but indicated that he would deal with such an eventuality if and when it occurred. He cautioned the prosecutor to take care to avoid the inadmissible evidence being given inadvertently.