R v BDX [2009] VSCA 28 (12 March 2009)


CRIMINAL LAW – Conviction – Incest – Credibility of complainant – Witness called on behalf of defence to say that she would not believe complainant on her oath – Whether witness’ evidence wrongly rejected – Expert witness called on behalf of defence to give evidence regarding infantile amnesia – Collateral evidence rule – Whether expert’s evidence wrongly rejected – Whether inadequate directions given to jury – Delay in reporting offences – Kilby direction – Longman warning – Bench of five judges constituted to consider correctness of Taylor (No 2) [2008] VSCA 57 – Application of doctrine of precedent to five-judge court – Whether recent complaint – Liberato direction – Onus of proof – Appeal allowed on expert witness ground – Retrial ordered.

Ground 3 – Longman and Kilby warnings

198 In Taylor (No 2)[119] this Court decided that the amendments made to s 6L of the Crimes Act 1958 by the Crimes (Sexual Offences Further Amendments) Act 2006 applies to trials initiated by presentment filed or further presentment filed over on or after the commencement of that Act. The appellant contends that the decision in Taylor (No 2) was wrong and, consequently, that the trial judge was wrong to direct the jury as if the amendments did apply.

199 In our view, Taylor (No 2) was correctly decided and nothing advanced in argument causes us any doubt about the reasoning which supports it. One case not mentioned in argument but which might perhaps be thought to bear upon the problem is Cornwell v The Queen.[120] In that case the High Court held that a second trial following a mistrial or successful appeal was not a new proceeding but rather that the first trial and the second trial were parts of the one proceeding for the purposes of s 128(7) of the Evidence Act 2008 . Significantly, the Court considered that to be the case regardless of whether an accused were put up for a second trial on the original indictment or a fresh indictment, providing the charges in each case were the same. It seems to us, however, that the decision turned on the terms and purpose of s 128(7) of the Evidence Act 2008 , which are of course very different to the terms and purpose of s 607 of the Crimes Act 1958. We do not consider that it throws any doubt on the decision in Taylor (No 2).