CMG v The Queen - [2011] VSCA 416

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0044

CMG
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, WEINBERG and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 October 2011
DATE OF ORDERS:	24 October 2011
DATE OF PUBLICATION OF REASONS:	9 December 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 416
JUDGMENT APPEALED FROM	DPP v [CMG] (Unreported, County Court of Victoria, Judge Sexton, 11 February 2011 (date of verdict/ conviction), 25 February 2011 (date of sentence))

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CRIMINAL LAW – Conviction – Committing an indecent act with a child under 16 – Taking part in an act of sexual penetration with a child under 16 – Reliability of evidence given by child witnesses – Whether trial judge when summarising the defence closing submissions erred in referring to material not in evidence concerning the reliability of child witnesses – Status of the comments as directions of law – R v Barker [2010] EWCA Crim 4 discussed – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	Doogue & O’Brien
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I have read in draft the reasons for judgment of Harper JA. I respectfully agree with them. They explain why I joined in the orders made on 24 October 2011.

WEINBERG JA:

I joined in the decision to allow this appeal for the reasons set out by Harper JA.

HARPER JA:

On 24 October 2011, the Court announced that the present appeal must be allowed, for reasons to be published. These are my reasons for joining in that decision.

In January 2009, the appellant was 38 years of age. He was, on one day during that month, entrusted with the care of a seven year old girl, to whom he was distantly related by marriage.

A rough itinerary for the occasion was agreed with the child’s mother. When, a day or two later, the child informed her mother that the appellant had taken her to his home, the mother’s suspicions were aroused. Such a visit had not been part of the arrangements to which she had agreed. Concerned about this, the complainant’s mother questioned her daughter further. As a result, additional information was obtained. It put the appellant’s behaviour in a unfavourable light. The matter was reported to the police, and the appellant was subsequently charged with six counts of committing an indecent act with a child under the age of 16, and one count of taking part in an act of sexual penetration with a child of that age.

The appellant maintained his innocence; but, on 11 February 2011, he was found guilty by a jury of three of the six charges of committing an indecent act with a child under the age of 16, and on the single charge of taking part in an act of sexual

penetration with such a child. He was acquitted of the other three charges.

The prosecution case depended upon the…

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 [2011] VSCA 416
Case: [2011] VSCA 416
Decision Date: 9 December 2011

CaseChat Overview and Summary

CMG appealed against his conviction for committing an indecent act with a child under 16 and taking part in an act of sexual penetration with a child under 16. The appeal was heard by the High Court of Australia, which considered whether the trial judge erred in his summation of the defence closing submissions regarding the reliability of child witnesses. The court also considered whether the judge's comments constituted a direction of law and whether they were correct. The case hinged on the reliability of the evidence provided by the child witnesses, and the potential for the trial judge's comments to have influenced the jury's assessment of that evidence.

The primary legal issue before the court was whether the trial judge's comments during his summation of the defence closing submissions were an impermissible direction of law concerning the reliability of child witnesses. The court considered whether the comments constituted a direction of law, and if so, whether that direction was correct. The court also considered whether the comments were such that they might have had the effect of influencing the jury's assessment of the evidence provided by the child witnesses. The High Court of Australia held that the trial judge's comments constituted an impermissible direction of law concerning the reliability of child witnesses, and that those comments were such that they might have had the effect of influencing the jury's assessment of the evidence. The court found that the trial judge's comments were not supported by the evidence, and that they were likely to have had the effect of undermining the jury's assessment of the child witnesses' evidence.

The High Court of Australia held that the trial judge's comments constituted an error of law, and that the error was such that it might have affected the outcome of the trial. The court found that the error was not a minor one, and that it was not capable of being described as harmless. The court held that the error was such that it might have had a significant effect on the outcome of the trial, and that it was therefore necessary to allow the appeal. The High Court of Australia allowed the appeal, quashed the conviction, and ordered a re-trial. The court held that the error of law was such that it might have had a significant effect on the outcome of the trial, and that it was therefore necessary to allow the appeal. The conviction was quashed, and the matter was remitted for re-trial.

Orders