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…
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- CMG v The Queen [2011] VSCA 416
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- [2011] VSCA 416
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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