JRW v The Queen - [2013] VSCA 255

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0123

J R W
	Applicant
v
THE QUEEN
	Respondent

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JUDGES	REDLICH, WEINBERG & COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	6 March 2013
DATE OF JUDGMENT	20 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 255
JUDGMENT APPEALED FROM	DPP v JRW (Unreported, County Court of Victoria, Judge Murphy, 2 April 2012)

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CRIMINAL LAW – Leave to appeal against conviction – Whether trial judge erred in permitting evidence pertaining to a charge the subject of a directed acquittal from being led as context evidence for other charges – Complainant gave no evidence of the charge – Directed acquittal due to a lack of particularity – Directed acquittal misapplied the principles of particularisation in PPP v The Queen (2001) 27 VR 68 – Whether the trial judge erred in directing the jury as to the use of the context evidence – Leave to appeal refused – R v VN (2006) 15 VR 113 applied.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Robert Davis
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Office of Public Prosecutions

REDLICH JA:

I agree with Coghlan JA that leave to appeal should be refused.

It is well settled that where there is repeated sexual abuse of the complainant in indistinguishable circumstances, the legal requirement of specificity will be satisfied by evidence from the complainant as to the first occasion that it occurred. The rulings by the trial judge in which he directed acquittals on numerous counts appears to reflect a misunderstanding of the ‘first occasion’ particular. In PPP v The Queen,[1] the court explained what it was that must be established in order to make out the particular of a first occasion of repeated acts of the same kind committed in the same circumstances. First the evidence of what occurred on the first occasion must establish the elements of the offence. Second, the complainant must have a degree of recollection that enables the complainant to say that such particular conduct had not previously occurred. As was stated in PPP, it is not necessary that the recollection of the detail of the ‘first occasion’ contain some feature which distinguishes it from later occasions. Third, the evidence must establish that the ‘first occasion’ occurred within the period stated in the count.
[1](2010) 27 VR 68 (‘PPP’).

I agree with Coghlan JA that the direction to acquit on charge 12 was erroneous. That direction was based upon the view that there was an absence of any evidence by the complainant as to that charge and hence it was not known what the evidence was that supported the charge. In his ruling, the trial judge concluded that as there was no evidence from the complainant in support of this charge, the jury could not be satisfied that the particular alleged event had occurred. But this was not a charge particularised as a first occasion. The need…

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 JRW v The Queen

Details

AGLC: JRW v The Queen [2013] VSCA 255
Case: [2013] VSCA 255
Decision Date: 20 September 2013

CaseChat Overview and Summary

The appellant, JRW, appealed against his conviction, seeking leave to appeal against both the conviction and the sentence. The dispute arose from a criminal trial where the appellant was charged with various offences, and the trial judge permitted evidence pertaining to a charge that had been the subject of a directed acquittal to be led as context evidence for other charges. The complainant did not provide evidence regarding the charge in question, leading to a directed acquittal due to a lack of particularity. The appellant contended that the trial judge misapplied the principles of particularisation as outlined in PPP v The Queen and erred in directing the jury on the use of the context evidence.

The legal issues before the court were whether the trial judge erred in permitting evidence pertaining to a directed acquittal charge to be led as context evidence and whether the trial judge erred in directing the jury regarding the use of such evidence. The court had to consider the principles of particularisation and the appropriate use of context evidence in criminal trials.

The court found that the trial judge did not err in permitting evidence pertaining to the directed acquittal charge to be led as context evidence. The court held that the principles of particularisation were not misapplied, and the directed acquittal was correctly decided. The court also found that the trial judge did not err in directing the jury regarding the use of the context evidence. The court applied the principles established in R v VN, confirming that the trial judge's directions were appropriate. Consequently, the appellant's application for leave to appeal against his conviction was refused.

No further orders were made by the court. The appellant's conviction and sentence remained as decided by the trial judge.

Orders