C G v The Queen

[2011] VSCA 211

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0884 

CG

v

THE QUEEN

---

JUDGES:	ASHLEY and HANSEN JJA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 July 2011
DATE OF JUDGMENT:	25 July 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 211
JUDGMENT APEALED FROM:	(Unreported, County Court of Victoria, Judge Gucciardo, 20 October 2009)

---

Criminal law – Conviction – Evidence of admissions – Failure to give a Burns direction (R v Burns (1975) 132 CLR 258) – Crown’s concession that such a direction required in the circumstances – Appeal allowed – New trial ordered.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L C Carter	Victoria Legal Aid
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. The applicant, CG, was presented on four counts in the County Court at Shepparton in July 2009.  Counts 1 and 2, that is, of sexual penetration of a child aged between 10 and 16 under the care, supervision or authority of the accused, and of indecent assault were the subject of acquittals by direction.  Counts 3 and 4 went to the jury and the jury returned guilty verdicts.  Count 3 was a count of sexual penetration, in the period between 1 January 1989 and 4 July 1990, of a person aged over 10 but under 16, that person being under the care, supervision or authority of the accused.  The impugned conduct was that the accused inserted his penis into the mouth of the complainant.  Count 4 was a count of indecent assault.  It involved an incident at the same time as the incident the subject of Count 3 and consisted of the accused allegedly licking the complainant's vagina.

1. The judge sentenced the applicant on 20 October 2009 to four years' imprisonment on Count 3 and to two years' imprisonment on Count 4.  He cumulated a year of the sentence on Count 4, this producing a total effective sentence of five years' imprisonment.  He fixed a non‑parole period of three years.  He made a declaration in respect of pre‑sentence detention and certain ancillary orders.

1. The applicant seeks leave to appeal against both conviction and sentence.  It is only necessary to deal with the conviction application.  The four grounds relied upon are as follows:

Ground 1:The learned trial judge erred by admitting evidence of uncharged acts.

Ground 2:The learned trial judge erred by admitting evidence of the applicant having played a pornographic video in the presence of the complainant and the prosecution witness JM.

Ground 3:The learned trial judge erred in his directions concerning the use that could be made of the evidence of an uncharged act (Ground 1) and the playing of a pornographic video (Ground 2).

Ground 4:The learned trial judge erred by failing to adequately direct the jury in relation to the evidence of JB

1. The Crown has conceded that the judge erred in the manner complained of by ground 4, that is, that he failed…