BN v The Queen - [2012] HCASL 183

BN
v
THE QUEEN
[2012] HCASL 183
M50/2012

On 19 November 2009, after a trial by jury in the County Court of Victoria, the applicant was convicted of 11 counts of indecent assault upon a girl under the age of 16 years and of five counts of incest, contrary to ss 55(1) and 52(3) of the Crimes Act 1958 (Vic) as they stood at the relevant time. The convictions arose from sexual offences committed by the applicant against two of his sisters over a period spanning five years. On 3 June 2010, the trial judge (Parsons J) sentenced the applicant to a total effective sentence of eight years and nine months' imprisonment.
The applicant appealed against his convictions to the Court of Appeal of the Supreme Court of Victoria. The appeal was premised on three grounds. First, it was said that some of the charges against the applicant had not been sufficiently particularised. Secondly, it was submitted that the trial judge should have discharged the jury after his Honour was informed that the applicant had sat unnecessarily close to a group of jurors during a lunchtime adjournment. Thirdly, the applicant contended that the trial judge should have discharged the jury after the Crown prosecutor, in the course of cross-examining the applicant, referred to the applicant's wife as a "mail order bride".
On 8 December 2011, the Court of Appeal (Beach AJA, with whom Buchanan and Harper JJA agreed) dismissed the appeal. The Court of Appeal held that the charges were sufficiently specific, presented by reference to particular timeframes and locations. As to the second ground, the Court held that the trial judge had given due consideration to whether the lunchtime incident would give rise to apprehended bias, and had correctly concluded that it would not. Finally, the Court of Appeal held that the language used by the Crown prosecutor, taken in its context, did not warrant a discharge of the jury.
The applicant requires an extension of time within which to file his application for special leave to appeal to this Court. That extension should be granted. The application for special leave, however, should be dismissed. To the extent that the applicant raises grounds similar to those agitated before the Court of Appeal, there is no reason to doubt the correctness of the Court of Appeal's conclusions on those grounds. As to the additional grounds raised by the applicant, an appeal on those grounds has insufficient prospects of success to warrant a grant of special leave.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
12 December 2012 S.J. Gageler

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.

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Details

Case: [2012] HCASL 183
Decision Date

CaseChat Overview and Summary

BN appealed against his convictions to the High Court, seeking special leave to appeal against the decision of the Court of Appeal of the Supreme Court of Victoria. The legal issues in this case were whether the charges were sufficiently particularised, whether the trial judge should have discharged the jury due to the applicant sitting close to a group of jurors during a lunchtime adjournment, whether the trial judge should have discharged the jury due to the Crown prosecutor referring to the applicant's wife as a "mail order bride," and whether there were additional grounds for appeal. The Court held that the charges were sufficiently specific, the trial judge had given due consideration to the lunchtime incident and there was no apprehended bias, and the language used by the Crown prosecutor did not warrant a discharge of the jury. The Court also held that the additional grounds raised by the applicant had insufficient prospects of success to warrant a grant of special leave. Therefore, the application for special leave to appeal was dismissed.

The High Court found that the Court of Appeal had correctly decided the issues presented. The Court held that the charges were sufficiently particularised as they were presented by reference to particular timeframes and locations. As to the second ground, the Court held that the trial judge had given due consideration to whether the lunchtime incident would give rise to apprehended bias, and had correctly concluded that it would not. Finally, the Court held that the language used by the Crown prosecutor, taken in its context, did not warrant a discharge of the jury. The Court also held that the additional grounds raised by the applicant had insufficient prospects of success to warrant a grant of special leave. The Court dismissed the application for special leave to appeal.

The Court directed the Registrar to draw up, sign and seal an order dismissing the application. The Court held that the applicant was entitled to an extension of time within which to file his application for special leave to appeal, but that the application should be dismissed. The Court found that there was no reason to doubt the correctness of the Court of Appeal's conclusions on the grounds raised by the applicant, and that an appeal on the additional grounds had insufficient prospects of success to warrant a grant of special leave. The Court dismissed the application for special leave to appeal.

The final orders were that the applicant was granted an extension of time to file his application for special leave to appeal, but that the application was dismissed. The Court held that the Court of Appeal's conclusions on the grounds raised by the applicant were correct, and that an appeal on the additional grounds had insufficient prospects of success to warrant a grant of special leave. The Court dismissed the application for special leave to appeal.

Orders