Ha v R

Case [2014] VSCA 335 18 December 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0067

VAN LAN HA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 November 2014
DATE OF JUDGMENT:	18 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 335
JUDGMENT APPEALED FROM:	DPP v Ha (Unreported, County Court of Victoria, Judge Gaynor, Sentence 20 March 2014)

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CRIMINAL LAW – Conviction – Views and inspections – Judge’s summary– Jury inspected crime scene – Questions asked but not recorded – Judge declined to summarise view – Acquiescence by defence counsel – No miscarriage of justice – Observations about importance of summarising what took place– Evidence Act 2008, ss 53, 54.

CRIMINAL LAW – Appeal – Conviction – Indecent assault – Whether verdicts unsafe and unsatisfactory – Whether jury entitled to accept complainant’s account – Distress – Prompt complaint – DNA evidence – Application refused.

CRIMINAL LAW – Appeal – Sentence – Indecent assault (eight charges) – Total effective sentence 4 years, non-parole period 2 years – Whether manifestly excessive – Prior offending of similar character – Victim was young employee – Breach of trust – Importance of specific deterrence – Application refused.

CRIMINAL LAW – Appeal – Sentence – Serious sexual offender – Judge did not make required declaration – whether omission able to be corrected on appeal – No power to correct – Sentencing Act 1991, s 6F, s104A, Criminal Procedure Act 2009, ss 312, 325.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	David Barrese and Associates
For the Crown	Mr P B Kidd SC with Mr C T Carr	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Priest JA. His Honour’s discussion of the procedures to be adopted when a jury is taken for a view will provide invaluable guidance for trial judges. For the reasons which his Honour gives, I too would refuse both applications for leave to appeal.

WEINBERG JA:

I agree with Priest JA that leave to appeal against both conviction and sentence should be refused. I would add only this. I particularly endorse his Honour’s observations regarding the importance of a record of some sort being made of what transpired during the course of a view.

This was perhaps less critical before the enactment of the Evidence Act 2008. As s 54 makes clear, a view in a criminal trial is no longer merely a mechanism for enabling the jury to better understand the evidence that is to be, or has been, led. A view is now itself a separate and distinct source of evidence. For that reason, it is desirable that some record of what the jury saw, and any questions that they raised, be maintained.

If it is the case, as I understand it to be, that some trial judges regard this process as a pointless formality, they should perhaps reflect…

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 Ha v R

Details

AGLC: Ha v The Queen [2014] VSCA 335
Case: [2014] VSCA 335
Decision Date: 18 December 2014

CaseChat Overview and Summary

The appellant was convicted of eight counts of indecent assault against a young female employee and was sentenced to a total effective term of four years, with a non-parole period of two years. The primary legal issues before the court were whether the convictions were unsafe and unsatisfactory, whether the jury was entitled to accept the complainant's account, and whether the sentence was manifestly excessive. The court also considered whether the omission of a required declaration under the Sentencing Act 1991 could be corrected on appeal.

The court found that there was no miscarriage of justice in the trial as the judge had not summarised the view taken by the jury after inspecting the crime scene, as the defence counsel had acquiesced to this. The court emphasised the importance of summarising such views to ensure a fair trial. Additionally, the court held that the jury was entitled to accept the complainant's account, given the prompt complaint, distress, and DNA evidence. The court also determined that the sentence was not manifestly excessive, considering the prior offending of a similar character, the breach of trust, and the importance of specific deterrence.

The court further held that it had no power to correct the omission of a required declaration under the Sentencing Act 1991 on appeal, in accordance with the Criminal Procedure Act 2009. Consequently, the appeal against conviction and sentence was dismissed, and the total effective sentence of four years, with a non-parole period of two years, was upheld.

The court made no orders regarding the required declaration under the Sentencing Act 1991, as it found no power to correct the omission on appeal.

Orders