H S G v The Queen - [2011] VSCA 163

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0836

HSG	Applicant
	V
THE QUEEN	Respondent

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JUDGES	WEINBERG and HARPER JJA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 May 2011
DATE OF JUDGMENT	8 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 163
JUDGMENT APPEALED FROM	R v [HSG] (Unreported, County Court of Victoria, Judge Gullaci, 29 September 2009)

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CRIMINAL LAW – Appeal – Conviction – Incest – Victim’s credibility central issue in trial – Lengthy delay between alleged offending and first complaint – Series of prior opportunities to complain not availed of – Inconsistencies between terms of complaints – Trial judge permitted Crown to lead evidence of complaint pursuant to s 41D Evidence Act 1958 – Whether evidence ‘sufficiently probative’ having regard to nature and content of, and circumstances under which, complaints made – Evidence wrongly admitted – Whether proviso can be invoked – Appeal allowed – New trial ordered

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr M Dempsey	Pica Criminal Lawyers
For the Crown	Mr R Elston SC	Mr C Hyland, Solicitor for Public Prosecutions

THE COURT

On 17 May 2011, we ordered that the applicant’s appeal against conviction be allowed and that there be a new trial. We said that we would publish our reasons at a later date. These are those reasons.

On 24 August 2009, the applicant was convicted in the County Court at Melbourne on a single count of incest. The offence occurred in 2001. The victim, his daughter ‘X’, was aged nine at the time of the offending.

Following a plea in mitigation, the applicant was sentenced to four years’ imprisonment. He had earlier, in October 2007, pleaded guilty to five counts of incest and one count of gross indecency against his stepdaughter ‘Z’. The offences involving Z were based on an ongoing sexual relationship that took place between 1988 and 2000.

At the time the applicant was sentenced for the current offence, he had already served approximately two years of a total effective sentence of eight years and six months (‘the earlier sentence’) in relation to the offences he had committed against Z.

When sentencing the applicant for the current offence against X, the judge ordered that he serve two years of the present sentence cumulatively upon the earlier sentence. The judge fixed a new non-parole period of six years.

The applicant sought leave to appeal against both conviction and sentence.

Conviction appeal

The applicant relied upon on a single ground of appeal being, in effect, that the trial judge had erred in permitting the Crown to lead evidence, pursuant to s 41D of the Evidence Act 1958, of a complaint by X to her cousin ‘Y’.

In its written submissions filed with this Court, the Crown conceded that the complaint evidence was wrongly admitted. The Crown accepted that the evidence was not ‘sufficiently probative’ to warrant admissibility, as required by s 41D(2). Nonetheless, the Crown sought to invoke the proviso,[1] contending that the admission…

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 S G v The Queen

Details

AGLC: H S G v The Queen [2011] VSCA 163
Case: [2011] VSCA 163
Decision Date: 8 June 2011

CaseChat Overview and Summary

H S G was found guilty of incest by a jury in the County Court of Victoria. The appeal was brought before the Court of Appeal against the conviction. The primary issue before the court was whether the trial judge erred in admitting certain evidence related to the victim's complaint about the alleged offence. The court was required to determine whether the evidence was sufficiently probative, considering the nature and content of the complaints and the circumstances under which they were made. This was a significant point as the victim's credibility was a central issue in the trial, and the evidence in question had a substantial impact on the jury's decision.

The court examined the nature of the complaint and the lengthy delay between the alleged offence and the first complaint. It also considered the series of prior opportunities to complain that the victim had not availed herself of. Additionally, the court looked at the inconsistencies between the terms of the complaints. The court concluded that the evidence was wrongly admitted as it did not meet the criteria of being sufficiently probative. The court found that the trial judge should have exercised their discretion under s 41D of the Evidence Act 1958 to exclude the evidence, as it was not probative enough to be of any real value to the jury in determining the credibility of the victim. The court held that the error was not trivial or insignificant and had materially affected the outcome of the trial.

Given the errors in the admission of evidence, the court allowed the appeal and ordered a new trial. The court emphasised the importance of the trial judge's discretion in admitting evidence under s 41D and the need to ensure that such evidence is probative enough to assist the jury in determining the facts of the case. The court recognised that the victim's credibility was a critical issue in this case and that the wrongly admitted evidence had a significant impact on the jury's decision. The new trial will provide an opportunity to reassess the evidence and ensure that the correct legal standards are applied.

Orders