C G v The Queen

[2011] VSCA 362

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0137
CG	Appellant
v
THE QUEEN	Respondent

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JUDGES	REDLICH and MANDIE JJA and WHELAN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 September 2011
DATE OF JUDGMENT	18 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 362
JUDGMENT APPEALED FROM	Director of Public Prosecutions v CG (Unreported, County Court of Victoria, Judge Cotterell, 29 June 2011)

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CRIMINAL LAW – Post-trial admissions by witness – Admission of perjury at trial – Collaboration with complainants - Conviction quashed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr Bilan Amani (of Hardys Lawyers)	Hardys Lawyers
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA

MANDIE JA
WHELAN AJA:

1. Following a trial in the County Court in early 2011, the applicant was convicted of one count of maintaining a sexual relationship with a child under the age of 16, five counts of incest, two counts of indecent assault and three counts of an indecent act with a child under 16.  The two complainants in the charges were the applicant’s two elder biological daughters.

1. The applicant appealed against his conviction on the sole ground that there was a miscarriage of justice by reason of the fresh evidence of a key prosecution witness who had admitted to police investigators subsequent to the trial that she had given perjured evidence.  The appeal came before this Court on 22 September 2011. 

1. The Crown conceded, among other things, that there was a significant possibility that a jury acting reasonably would have acquitted the applicant of the charges if the fresh evidence had been before it during the trial.  The appeal was allowed on the basis of the post-trial conduct of the key prosecution witness, the conviction quashed and a new trial ordered. 

1. The witness was the youngest daughter of the applicant and sister to the two complainants in the case.  She gave evidence at trial that, among other things, corroborated the evidence of the two complainants.  In April 2011, shortly after the applicant was convicted, she recanted the evidence given at the trial and claimed it was false and made in the face of threats against her by the two complainants.  She claimed that she ultimately agreed to give false evidence against her father.  There was a police investigation regarding whether the witness should be charged with perjury, but no charges were laid.   

1. It should not be understood that an appeal will always be allowed when it relates to a decision at first instance involving evidence from a witness or complainant that may have been tainted by perjury or subsequently recanted. 

1. The fresh evidence went to the heart of the case against the applicant.  It was inextricably interwoven with, and in many respects corroborative of, the evidence of the complainants.  Such evidence would potentially affect the credibility of the complainants.  That is especially important in the context of this case because the evidence in the trial for the Crown depended substantially on the complainants’ credibility, particularly in light of the reliance on tendency evidence.  

1. The appeal was therefore allowed because it involved fresh evidence that could not be reasonably tendered at the trial and was apparently plausible in the view of this Court; and sufficiently relevant and cogent in the sense that if it were considered alongside the evidence lead at trial, it would give rise to a significant possibility that the jury acting reasonably would have acquitted the applicant of the charges.[1] 

   [1]R v AHK [2009] VSCA 2, [8]–[9] (Winneke P, with Brooking JA agreeing); see also R v DD [2005] VSCA 308, [39]–[41] (Charles JA, with Buchanan and Eames JJA agreeing).

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