Legal Research
Cases
DR v The Queen

DR v The Queen

Case [2011] VSCA 440 20 December 2011

Criminal Liability

Conviction

Admissibility of Evidence

Jury Directions

Joinder

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0298

D R	Applicant
	v
THE QUEEN	Respondent

---

JUDGES	NEAVE, HANSEN JJA and BEACH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	21 October 2011
DATE OF JUDGMENT	20 December 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 440
JUDGMENT APPEALED FROM	DPP v [DR] (Unreported, County Court of Victoria, Judge Murphy, 4 August 2010)

---

CRIMINAL LAW − Conviction − Incest − Indecent assault − Gross indecency − Indecent act with and in the presence of a person under the age of 16 − Two complainant stepdaughters
− Joinder − Whether substantial miscarriage of justice occasioned by trial of offences against both complainants in same proceeding − Evidence − Admissibility − Tendency and coincidence evidence − Jury directions − Whether trial judge adequately directed jury regarding use of charged and uncharged acts and elements of offences − Whether substantial miscarriage of justice occasioned by jury directions being given prior to charge.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr P G Priest QC with Mr T Kassimatis	Pica Criminal Lawyers
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:
HANSEN JA:
BEACH AJA:

The applicant, DR, was presented on nine counts of sexual offences against his stepdaughter AR, and 29 counts of sexual offences against his stepdaughter ER.

A County Court jury found him guilty of three counts of indecent assault of AR (counts 1, 4 and 5); two counts of gross indecency against AR (counts 2 and 9); 7 counts of an indecent act with ER (counts 11, 13, 20, 32, 33, 35, 36); 10 counts of an indecent act in the presence of ER (counts 10, 12, 16, 19, 21, 22, 24, 25, 29 and 37) and five counts of incest involving penetration of ER (counts 18, 23, 28, 30 and 31). The Crown conceded that no evidence had been led in support of counts 3, 8, 14, 15, 17, 26 and 27 and the jury was directed to acquit the applicant of these counts.

The offences committed against AR arose out of four separate incidents when she was between nine and ten years old. Those against ER arose out of fourteen separate incidents, over several years, when she was between eight and fourteen years old.

After hearing a plea in mitigation of sentence, the applicant, who was between 37 and 45 years old at the time of offending and 56 at the date of sentence, was sentenced to a total effective sentence of eight years and nine months’ imprisonment, with a non-parole period of five years and nine months’ imprisonment.

The applicant now appeals against his conviction and the sentences imposed on him.

Background

The applicant was born and educated to the equivalent of Year 10 in England. In 1990, after having arrived in Australia from England, the applicant married the complainants’ mother, and moved into the complainants’ home.

The evidence relating to the offences of which the applicant was convicted…

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 DR v The Queen

Details

AGLC: DR v The Queen [2011] VSCA 440
Case: [2011] VSCA 440
Decision Date: 20 December 2011

CaseChat Overview and Summary

The appellant, DR, was convicted of multiple offences of incest, indecent assault, gross indecency, and indecent acts with and in the presence of two complainants, his stepdaughters, who were under the age of 16 at the time of the offences. The trial was held in the Supreme Court of Queensland, and the appeal was brought before the Court of Appeal. The central issue in this appeal was whether the trial of the offences against both complainants in the same proceeding caused a substantial miscarriage of justice. Additionally, the appeal questioned whether the trial judge adequately directed the jury regarding the use of charged and uncharged acts and elements of the offences, and whether the jury directions being given prior to charge caused a substantial miscarriage of justice.

The court held that the joinder of the charges did not occasion a substantial miscarriage of justice, as the evidence of each complainant was distinct and the jury was properly directed to consider each count separately. The court further found that the trial judge adequately directed the jury on the use of tendency and coincidence evidence, and that the jury directions were not so flawed as to cause a substantial miscarriage of justice. The court noted that while the directions could have been improved, they were sufficient to ensure a fair trial.

As a result of the appeal, DR's convictions were upheld, and the appeal was dismissed. The court did not deem the errors in the trial process to be so significant as to warrant a retrial, and therefore no orders were made to set aside the convictions or order a new trial.

Orders