BN v The Queen

[2012] HCASL 183

BN

v

THE QUEEN

[2012] HCASL 183
M50/2012

1. 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.

2. 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". 

3. 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.

4. 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.

5. 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