and Ha v The Queen - [2013] VSCA 77

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0114
HA	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE AP, BUCHANAN and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 April 2013
DATE OF JUDGMENT	9 April 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 77
JUDGMENT APPEALED FROM	DPP v [HA] (Unreported, County Court of Victoria, Judge Gaynor, 6 February 2012)

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CRIMINAL LAW – Conviction – Sexual penetration of child under 16 and indecent act with child under 16 – Jurisdiction – Offences committed on ferry steaming between Port of Melbourne, Victoria and Port of Devonport, Tasmania – Whether and when necessary for Crown to prove that offences committed within Victorian jurisdiction – Thompson v R (1989) 169 CLR 1, considered; Reg v Wallwork (1958) 42 Cr App R 153; Reg v Hildebrandt (1963) 81 WN (NSW) 143, referred to.

CRIMINAL LAW – Procedure – Indictment – Pleading – Whether necessary for Crown to plead place of commission of offences – Whether pleading that offences committed at place ‘adjacent to Victoria’ adequate to invoke statutory presumption applicable to offences alleged to have been committed within ‘adjacent area’ for Victoria – Whether failure to invoke statutory presumption inimical to pleading – Reg v Wallwork (1948) 42 Cr App R 153, applied; Criminal Procedure Act 2009 (Vic), Schedule 1 – Crimes at Sea Act 1999 (Vic), Crimes at Sea Act 2000 (C’th), Schedules 1, Clauses 1, 2 and 4.

CRIMINAL LAW – Evidence – Mode and form – Evidence of former Master of ferry as to ‘legal boundary’ between Victorian and Tasmanian waters – Whether evidence as to ‘legal boundary’ objectionable as hearsay or opinion or otherwise in point of mode and form – Whether objection waived – R v Ford [1972] VR 3; R v Radford (1993) 6 A Crim R 210; R v Clark (2005) 13 VR 75, referred to – Evidence Act 2008 (Vic), s 143.

CRIMINAL LAW – Juries – Transcript of discussion between judge and counsel in absence of jury – Transcript inadvertently given to jury – Whether productive of miscarriage of justice – Juries Act 2000 (Vic), s 78(4).

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Appearances:	Counsel	Solicitors
For the Appellant	Mr P F Tehan QC	McNamaras
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE AP:

Following a trial in the County Court at Melbourne, the appellant was convicted of one count of sexual penetration of a child under the age of 16 and two counts of indecent act with a child under 16 and was sentenced therefor to a total effective sentence of three years' imprisonment with a non‑parole period of one year and six months.

This is an appeal against conviction. Originally there were four grounds of appeal. On 30 November 2012, Bongiorno JA granted the appellant leave to appeal on Ground 2 only. The appellant, however, has since elected to renew his application to appeal on Grounds 3, 4 and 1. Accordingly, it is convenient to deal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading and Ha v The Queen

Details

AGLC: and Ha v The Queen [2013] VSCA 77
Case: [2013] VSCA 77
Decision Date: 9 April 2013

CaseChat Overview and Summary

In the case of and Ha v The Queen, the appellant was convicted of sexually penetrating a child under 16 years and committing an indecent act with a child under 16 years on a ferry travelling between the Port of Melbourne, Victoria, and the Port of Devonport, Tasmania. The Supreme Court of Victoria was tasked with considering whether the Crown had to prove the specific location of the crimes within Victoria's jurisdiction, and if the trial judge's failure to instruct the jury to consider the possibility of the offences being committed in Tasmanian waters was an error. Additionally, the court examined whether the former Master of the ferry's evidence about the 'legal boundary' between Victorian and Tasmanian waters was admissible, and if the inadvertent disclosure of a transcript of a discussion between the judge and counsel to the jury was a miscarriage of justice.

The legal issues revolved around whether the Crown needed to plead the exact location of the offences and whether stating that the offences were committed 'adjacent to Victoria' was sufficient to invoke the statutory presumption that they were committed within the 'adjacent area' of Victoria. The court also considered whether the failure to invoke this presumption was detrimental to the pleadings. Furthermore, the admissibility of the former Master's evidence regarding the 'legal boundary' between Victorian and Tasmanian waters was scrutinized, as was the potential prejudice caused by the jury being exposed to a transcript of a discussion between the judge and counsel.

The court determined that the statutory presumption did not apply because the Crown had not pleaded the specific location of the offences within Victoria's jurisdiction. It was not necessary for the Crown to plead the exact location, but merely stating 'adjacent to Victoria' was not enough to invoke the presumption. The court also found that the evidence about the 'legal boundary' between Victorian and Tasmanian waters was not objectionable as hearsay or opinion, and any objections were waived. Finally, the court concluded that the inadvertent disclosure of the transcript to the jury was not a miscarriage of justice under the Juries Act 2000 (Vic).

As a result of these findings, the convictions were quashed, and a retrial ordered. The court held that the failure to instruct the jury to consider the possibility of the offences being committed in Tasmanian waters was an error that could not be ignored. The court did not find the inadvertent disclosure of the transcript to the jury to be a miscarriage of justice, and thus did not order a new trial on that ground. The convictions were quashed, and a retrial ordered to address the jurisdictional issues.

Orders