C G v The Queen

[2011] VSCA 211

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0884 

CG

v

THE QUEEN

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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)

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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.

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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 to adequately direct the jury in relation to the evidence of a witness, JB.  For the reasons which follow, the concession was rightly made, and the judge’s failure to adequately direct – albeit that no request was made that he do so, and that no exception was taken when he did not do so – was productive of a miscarriage of justice. 

1. JB is a brother of the complainant.  He gave evidence of a conversation which he had with the applicant after the complainant had first attended upon the police in 2006.  His evidence‑in‑chief essentially fell into two parts.  Initially, he gave evidence that the applicant had said that something had happened between him and the complainant: ‘It was all a bit touchy and feely and stuff; but ‘’it’’ did not happen.’  Then the witness was referred to a statement which he had earlier made to the police.  There, he had given a somewhat different account.  The prosecutor was permitted to ask leading questions about that account.  The key difference was that there, on the witness’s account, the applicant had said that ‘it’ had happened once.   The witness accepted, but in qualified terms, the accuracy of the account which he had given to the police. 

1. JB’s evidence was important.  Apart from the complainant's own evidence, which was not free of difficulties, there was little to corroborate the doing of the acts.  Other ‘admissions’ upon which the Crown relied were at least ambiguous.

1. On the Crown case, the applicant had made admissions to JB.  But admissions of what?  JB’s account of what the applicant had said was inconsistent.  Moreover, what that account, in any of its versions, amounted to was a matter of considerable uncertainty.  In the circumstances, a direction in accordance with Burns v The Queen[1] was required;  and none was given.  As Nettle JA said in the R v Buckley,[2] in somewhat analogous circumstances: 

… the judge did not caution the jury that they needed to be satisfied that the words which the applicant was alleged to have used were intended as an admission that he had committed the acts alleged … Given that the alleged admission was a major plank in a Crown case and there was room for different views about the exact effect of what the applicant was alleged to have said, I consider that it was necessary for the judge to give the jury a clear Burns direction. 

[1](1975) 132 CLR 258.

[2](2004) 10 VR 215.

1. Such a direction should have been to the effect that the jury must be satisfied beyond reasonable doubt of what the applicant had said to JB;  and that whatever had been said was truthful.  Further, the count or counts in respect of which the evidence was capable of constituting a confession needed to be identified.

1. I should say just a little about grounds 1 to 3.  They relate to evidence of so‑called uncharged acts which was admitted over objection at the trial.  The evidence fell into two categories.  The first category was evidence given by the complainant of an incident of oral penetration which took place some years before the events the subject of counts 3 and 4.  The second category was evidence given by the complainant and a girlfriend, M, that they had been shown a pornographic videotape by the applicant.  This incident, again, took place some years, as it seems, before the incident the subject of counts 3 and 4. 

1. The evidence given by the complainant with respect to the first category did not coincide with a version of that evidence which had been foreshadowed when the judge made a ruling that it might be admitted.  For that reason, and because, in the event that the applicant is put up for retrial, the admissibility of the uncharged acts evidence will be determined in accordance with the Evidence Act 2008, it seems to me undesirable to make any pronouncement concerning the admissibility of the particular evidence. 

1. In the event, for the reasons I have given, the application should be granted and the appeal allowed and the applicant sent for retrial.

HANSEN JA:

1. I agree.

WHELAN AJA:

1. I agree.

ASHLEY JA:

1. The Court makes the following orders:

1.        The application for leave to appeal against conviction is granted. 

2.        The appeal is treated as instituted and heard instanter and is allowed.

3.        The conviction sustained by the appellant in the Court below is quashed and the sentence passed thereon is set aside.

4.        The Court directs a new trial be had.

Not as part of the Court’s orders, the appellant is granted an indemnity certificate under s 14 of the Appeal Costs Act.

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