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CMG v The Queen

CMG v The Queen

Case [2013] VSCA 243 10 September 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0204
S APCR 2012 0092
S APCR 2012 0138

CMG	Appellant
v
THE QUEEN	Respondent

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JUDGES	WARREN CJ, REDLICH and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	6 February 2013
DATE OF JUDGMENT	10 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 243	1^st Revision 13 September 2013 2^nd Revision 21 October 2013, paras [229], [232] and [241]
JUDGMENT APPEALED FROM	DPP v [CMG] (Unreported, County Court of Victoria, Judge Gaynor, 29 June 2011) ( S APCR 2012 0138 & S APCR 2011 0204) DPP v [CMG] (Unreported, County Court of Victoria, Judge Smallwood, 2 April 2012) (S APCR 2012 0092)

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CRIMINAL LAW – Appeal against conviction – Four charges of sexual penetration of a child under 10 – Three charges of indecent assault – Whether trial judge erred in precluding defence counsel from making certain submissions in final address – Failure by counsel to apply the rule in Browne v Dunn (1893) 6 R 67 to the complainant and other witnesses – Counsel warned as to the lack of evidentiary basis of the submissions.

CRIMINAL LAW – Juries – Role of the jury keeper – Whether irregularity – Whether court officer acted as jury keeper during deliberations – Separation oath/affirmation given to the jury – Section 49 of the Juries Act 2000.

CRIMINAL LAW – Appeal against conviction – One charge of indecent act with a child under 16 – Whether verdict inconsistent with the acquittal of two charges of indecent act with a child under 16 and one charge of sexual penetration with a child under 16 – Whether verdict unsafe and unsatisfactory – Appeal dismissed.

CRIMINAL LAW – Appeal against sentence – Sentence fixed taking account of sentence then being served for a conviction on other offences – Prior conviction later quashed – Matter brought back to sentencing judge – Whether the sentencing judge erred in fixing a new non-parole period following the quashing of a prior conviction – Section 412 of the Criminal Procedure Act 2009 – Sentencing judge functus officio upon the sentence entering the records of the court – DPP v Edwards [2012] VSCA 293 applied – Whether slip rule applied – Procedural fairness in re-sentencing. – Power on appeal to fix new sentence – Sub-section 277(3) of the Criminal Procedure Act 2009 considered – Appeal allowed – Resentenced to five years’ imprisonment with a non-parole period of three years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Desmond and Mr R Edney	Doogue & O’Brien
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

In this matter the appellant appeals two sets of convictions arising out of two trials involving different complainants and his sentence in relation to one set of those convictions.

The appellant was convicted of sexual offences in two separate trials. In the second trial, the convictions from the first trial were taken…

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.

Continue reading CMG v The Queen

Details

AGLC: CMG v The Queen [2013] VSCA 243
Case: [2013] VSCA 243
Decision Date: 10 September 2013

CaseChat Overview and Summary

CMG appealed against his conviction and sentence in relation to various charges of sexual offences against a child. The appeal was heard in the Court of Appeal. The primary issues before the court were whether the trial judge had erred in precluding the defence from making certain submissions in the final address, whether there was an irregularity in the role of the jury keeper during the deliberations, and whether the sentencing judge erred in fixing a new non-parole period following the quashing of a prior conviction. Additionally, the court examined whether the verdict was inconsistent with the acquittals on other related charges and whether the verdict was unsafe and unsatisfactory.

The court held that the trial judge did not err in precluding the defence from making certain submissions as they were not supported by evidence. The court also found no irregularity in the role of the court officer acting as the jury keeper during deliberations, as the separation oath/affirmation was administered in accordance with Section 49 of the Juries Act 2000. The verdict was deemed not inconsistent with the acquittals on related charges, and thus, the appeal against the conviction was dismissed. However, regarding the sentence, the court found that the sentencing judge had erred in fixing a new non-parole period after the quashing of a prior conviction. The court concluded that the sentencing judge was functus officio once the original sentence was recorded, and the appeal was allowed. The appellant was resentenced to five years' imprisonment with a non-parole period of three years.

The court ordered that the appellant be resentenced to five years' imprisonment with a non-parole period of three years. The appeal against conviction was dismissed, but the appeal against sentence was allowed. The decision underscored the importance of evidentiary support in legal submissions and the procedural correctness in the fixing of a non-parole period following the quashing of a prior conviction.

Orders