H P v The Queen

[2011] VSCA 251

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2008 0868

HP	Applicant
	v
THE QUEEN	Respondent

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JUDGES	BONGIORNO, HARPER and HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	2 February 2011
DATE OF JUDGMENT	25 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 251
JUDGMENT APPEALED FROM	R v [HP] (Unreported, County Court of Victoria, Judge Lacava, 22 September 2008 (date of conviction/verdict), 8 October 2008 (sentence)

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CRIMINAL LAW – Conviction – Two counts of incest – Retrial – Applicant presented on earlier trial for incest with the complainant and also for committing that indecent act of incest in the presence of the complainant’s friend – Both counts arising out of same act – Applicant acquitted on charge of committing an indecent act, but convicted of incest – Acquittal verdict consistent with the jury not accepting the friend was present – Whether on retrial of the charge of incest the trial judge erred in allowing the complainant’s friend to give evidence – Whether applicant not given the benefit of the earlier verdict of acquittal – Double jeopardy – R v Z [2000] 2 AC 483, Mraz v The Queen (No 2) (1956) 96 CLR 62, R v Storey (1978) 140 CLR 364, Washer v The State of Western Australia (2007) 234 CLR 492 distinguished – Conviction on one count of incest set aside and retrial ordered – Whether applicant should have been entitled to cross examine the complainant about her sexual experiences – Evidence Act 1958, s 37A.

CRIMINAL LAW – Sentence – Total effective sentence of 8 years’ imprisonment and non-parole period of 6 years – Manifest excess – Sentences imposed longer than those imposed on earlier trial – Delay – Uncharged acts – DPP v CPD [2009] VSCA 114 and R v AB (No 2) (2008) 18 VR 391 applied – Leave to appeal granted but appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr C B Boyce	Valos Black & Associates
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

1. I concur with Harper JA that the evidence of SDF should not have been admitted on the retrial of the applicant for the incest the subject of count 5 on the presentment.  My reasons for reaching that conclusion can be briefly stated.

1. In R v Storey,[1] the High Court considered the admissibility of certain evidence on the retrial of two accused on two charges of rape.  The evidence in question related to the behaviour of the accused towards the complainant shortly before the alleged rapes.  In their earlier trial, the accused had faced, as well as the charges of rape, a charge of forcible abduction.  In that trial, they were convicted on the counts of rape but acquitted on the count of forcible abduction.  They appealed their rape convictions and were granted a new trial on those counts.  On their retrial, the question of the admission of the evidence formerly…