D L J v The Queen - [2011] VSCA 389

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0082

DLJ

THE QUEEN

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JUDGES:	BUCHANAN JA and WHELAN and ROBSON AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 September 2011
DATE OF JUDGMENT/ORDER:	25 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 389
JUDGMENT APPEALED FROM:	County Court of Victoria, Judge Wilmoth, 19 March 2010

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CRIMINAL LAW – Application for leave to appeal conviction – Applicant convicted of eight counts of incest and one count of indecent assault of step-daughter – Absence of specific propensity warning in relation to discreditable conduct correct – No further direction as to use of evidence warranted – Verdicts not unsafe or unsatisfactory - Application for leave refused.

CRIMINAL LAW – Application for leave to appeal sentence – Total effective sentence of 9 years’ imprisonment with non-parole period of 6 years not manifestly excessive – Application for leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Johns	Haines & Polites
For the Respondent	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Whelan AJA.

WHELAN AJA:

Between 12 February 2010 and 23 February 2010 the applicant was tried in the County Court on nine counts of incest and two counts of indecent assault. The alleged victim of each of these offences was his stepdaughter, who I will refer to as the complainant.

Each offence was alleged to have occurred during a specified period. The earliest date referred to in the presentment was in September 1983 and the latest was in September 1988. The prosecution case was that that the offences occurred when the complainant was between the ages of 11 and 15 years’ old.

At the close of the prosecution case there were directed acquittals on one of the indecent assault counts (count 3) and one of the incest counts (count 10). The jury returned verdicts of guilty on 8 counts (counts 1, 2, 4, 5, 6, 7, 8 and 9) and not guilty on one count (count 11).

A plea hearing was held on 3 March 2010. The applicant was sentenced on 19 March 2010 to a total effective sentence of 9 years’ imprisonment with a non-parole period of 6 years.

The applicant now seeks leave to appeal his conviction and sentence.

Conviction application

Dealing first with the application in relation to conviction, there are four grounds now relied upon.

The first is that the trial judge failed to give a specific propensity warning in relation to what is said to have been ‘a large body of discreditable evidence,

unrelated to the allegations of sexual abuse’. The particular evidence which, it is suggested, ought to have been the subject of this warning is evidence of the complainant’s bed wetting and her treatment by the applicant as a result; evidence of threats made to a boyfriend of the complainant; evidence of the applicant having taken stimulants; evidence of the applicant having drugged his wife, the complainant’s mother; and evidence of 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 D L J v The Queen

Details

AGLC: D L J v The Queen [2011] VSCA 389
Case: [2011] VSCA 389
Decision Date: 25 November 2011

CaseChat Overview and Summary

The applicant, D L J, was convicted by a jury of eight counts of incest and one count of indecent assault of his step-daughter. The applicant applied for leave to appeal both his conviction and his sentence, which was a total effective sentence of nine years’ imprisonment with a non-parole period of six years. The central issues in this case were whether the absence of a specific propensity warning in relation to discreditable conduct was an error that warranted leave to appeal the conviction, and whether the sentence was manifestly excessive.

The court addressed the first issue by considering whether the absence of a specific propensity warning in relation to discreditable conduct was a significant error. The court noted that the trial judge had provided a general warning about the use of discreditable conduct evidence, and that there was no indication that the jury had been influenced by the absence of a specific warning. The court held that the absence of a specific propensity warning was not an error that warranted leave to appeal the conviction. The court also considered whether the verdicts were unsafe or unsatisfactory, and held that they were not.

In relation to the sentence, the court considered whether the total effective sentence of nine years’ imprisonment with a non-parole period of six years was manifestly excessive. The court noted that the applicant had a significant criminal history, and that the offences were of a serious nature. The court held that the sentence was not manifestly excessive, and that leave to appeal the sentence should be refused.

The court refused the applicant’s application for leave to appeal both his conviction and his sentence.

Orders