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Murillo, Ethan (a pseudonym) v The Queen [2020] VSCA 68

Victorian Court of Appeal
Kaye, T Forrest and Osborn JJA

Murillo, Ethan (a pseudonym) v The Queen

Judgment Date: 
26 March 2020

CRIMINAL LAW - Appeal - Conviction - Applicant convicted of five charges of indecent assault and three charges of incest - Prosecutor granted leave to lead misconduct evidence as context evidence - Witness cross-examined by prosecutor by leave under s 38 of the Evidence Act 2008 - Whether trial judge erred in admitting misconduct evidence - Whether trial judge erred in granting leave to cross-examine witness under s 38 - Cross-examination under s 38 not confined - Substantial miscarriage of justice - Breach of duty of fairness - Inflammatory language by prosecutor - Leave to appeal granted - Appeal allowed - Browne v Dunn (1893) 6 R 67; R v Hogan [2001] NSWCCA 292; Saddik v The Queen [2018] VSCA 249; Evidence Act 2008 ss 38, 41, 137, 192 considered.