H G a v the Queen - [2010] VSCA 114

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 933 of 2008

HGA
	v
THE QUEEN

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JUDGES:	WEINBERG, MANDIE and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 April 2010
DATE OF JUDGMENT:	14 May 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 114
JUDGMENT APPEALED FROM:	The Queen v HGA (Unreported, County Court, Judge Wood; applicant convicted 3 September 2008; applicant sentenced 21 November 2008)

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CRIMINAL LAW – Applicant convicted on seven counts of wilfully committing an indecent act with a child under age of 16 – Whether trial miscarried due to admission of evidence of uncharged acts – Whether adequate directions to jury regarding evidence of uncharged acts – Whether directions to jury regarding failure of Crown to call complainant's sister as a witness were adequate – Whether jury properly directed regarding the use to be made of evidence concerning the complainant's motives to lie – Whether judge erred in commenting on the applicant's video-taped interview with police and whether these comments could be interpreted as comments regarding the applicant's failure to give evidence at his trial – Whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G F Meredith	Victoria Legal Aid
For the Crown	Mr J D McArdle SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I agree for the reasons given by Mandie JA that leave to appeal should be refused.

MANDIE JA:

The applicant was convicted, on 3 September 2008, in the County Court at Bendigo, on seven counts of wilfully committing an indecent act with or in the presence of P, a child under the age of 16 to whom he was not married, contrary to s 47 (1) of the Crimes Act 1958. P was a stepdaughter of the applicant, born in March 1991. The applicant had been charged with eight counts but the jury was unable to agree on count 1 which involved an allegation of an act committed on or about 20 April 2000. The jury returned verdicts of guilty on the other counts which involved acts committed at a number of places in Victoria on or about 20 May 2000 (counts 2 and 3), 26 March 2003 (counts 4, 5 and 6) and between 26 March 2003 and 28 April 2003 (counts 7 and 8).

On 21 November 2008 the applicant was sentenced to a term of nine months’ imprisonment on count 2, nine months’ imprisonment on count 3, 15 months’ imprisonment on count 4, 21 months’ imprisonment on count 5, 21 months’ imprisonment on count 6, 18 months’ imprisonment on count 7 and three years’ imprisonment on count 8. The trial judge ordered that three months of the sentence on count 2, six months of the sentence on count 5 and nine months of the sentence on count 6 should be cumulative upon each other and upon count 8.…

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 H G a v the Queen

Details

AGLC: H G a v the Queen [2010] VSCA 114
Case: [2010] VSCA 114
Decision Date: 14 May 2010

CaseChat Overview and Summary

The applicant, H G, appealed against his conviction on seven counts of wilfully committing an indecent act with a child under the age of 16, arguing that the trial had miscarried due to the admission of evidence of uncharged acts and inadequate jury directions regarding such evidence. The appeal also contested the adequacy of directions concerning the Crown's failure to call the complainant's sister as a witness, the handling of evidence related to the complainant's motives to lie, and the judge's comments on the applicant's video-taped police interview. The High Court was tasked with determining the validity of these contentions and the overall fairness of the trial process.

The court considered whether the trial had indeed miscarried due to the admission of evidence of uncharged acts, examining the potential impact on the jury's decision-making process. It also scrutinised the adequacy of the trial judge's directions to the jury concerning the use of such evidence, the Crown's failure to call the complainant's sister, and the jury's consideration of the complainant's motives to lie. Additionally, the court assessed whether the judge's comments on the applicant's police interview could be interpreted as comments on the applicant's failure to give evidence, which might have prejudiced the jury against him.

In its judgment, the court found that the trial judge's directions to the jury were adequate, and there was no miscarriage of justice. The evidence of uncharged acts, while prejudicial, was not so significant as to undermine the fairness of the trial. The judge's comments on the applicant's police interview did not constitute an adverse comment on the applicant's failure to give evidence. Furthermore, the court concluded that it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt based on the evidence presented. Consequently, the High Court dismissed the appeal, affirming the applicant's conviction.

The High Court refused the applicant leave to appeal, thereby upholding the decision of the lower court. The court's ruling underscored the importance of proper jury directions and the potential for a fair trial even in the presence of prejudicial evidence. The applicant's conviction on all seven counts was thereby affirmed.

Orders