H P v The Queen

The case of H P v The Queen involved an appeal against conviction and sentence by the applicant, who had been convicted of two counts of incest. The appeal raised issues about the admissibility of evidence from a witness and the propriety of the sentence. The Supreme Court of Victoria heard the appeal and considered the issues in detail.

The court first examined whether the trial judge erred in allowing the complainant's friend to give evidence during the retrial of the charge of incest, which was distinct from the earlier trial. The applicant argued that the acquittal on the charge of committing an indecent act should have precluded the trial judge from allowing this evidence. The court found that the trial judge did not err in this regard and considered the double jeopardy implications as outlined in relevant case law. The court also addressed whether the applicant was denied the benefit of the earlier verdict of acquittal. The court held that the applicant was not denied this benefit and that the acquittal was consistent with the jury not accepting the friend was present.

The court further addressed the sentence imposed on the applicant, considering whether it was manifestly excessive. The court noted that the total effective sentence of 8 years’ imprisonment and the non-parole period of 6 years were longer than those imposed in the earlier trial. The court found that the sentences were excessive, taking into account the delay and uncharged acts. The court applied the principles from DPP v CPD and R v AB (No 2) in reaching this conclusion.

The final orders of the court granted the applicant leave to appeal against the sentence on count 8 but dismissed the appeal. The court set aside the conviction and sentence on count 5, ordered a new trial on that count, and fixed a new non-parole period of four years’ imprisonment before the applicant would be eligible for parole. The court also confirmed all other ancillary orders, pending further instructions from counsel.