JUDGES:	BUCHANAN, HANSEN and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 March 2011
DATE OF JUDGMENT:	20 April 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 111	1^st revision 28 June 2011

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CRIMINAL LAW – Sexual penetration of a child under 16 – Apprehended bias – Trial judge related to victim of a like crime – Aiding and abetting – Mere presence at the scene of an offence – Judge failed to tell jury that the accused must adopt or contribute to the crime – Belief of accused as to the age of complainant – Test not completely objective – Account of offence given by complainant to a medical practitioner admitted pursuant to s 41D of the Evidence Act 1958 (Vic) notwithstanding it contained an admitted lie – Lies admitted to prove consciousness of guilt – Allegations of a number of crimes – Direction to a jury sufficient – Prior inconsistent statement – Witness could not recall making the statement – Statement not admissible – Admission of VATE tapes pursuant to s 37B of the Evidence Act 1958 (Vic) – No unfairness to accused – Evidence admissible despite certain answers being untruthful – Health and police records – Division 2A of Part II of the Evidence Act 1958 (Vic) – Health and police records – Subpoena – Documents not required to be produced – Probative value – Distress of the complainant – Counsel refused leave to further address jury on distress – No injustice.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Gillespie-Jones	Paul Vale Criminal Law (Ringwood)
For the Respondent	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

At the conclusion of a trial in early 2009 in the County Court, the jury found the applicant, LAL, guilty on two counts of sexual penetration of a child under the age of 16 years. The applicant was acquitted on six counts of rape, one count of attempted rape, four counts of sexual penetration of a child under the age of 16 years, one count of attempted sexual penetration of a child under the age of 16 years and one count of an indecent act with or in the presence of a child under the age of 16 years.

A plea was conducted and the applicant was sentenced to be imprisoned for a term of three years on one of the counts of sexual penetration of a child under the age of 16 years and for a term of 18 months on the other count. The sentencing judge ordered that six months of the lesser sentence be cumulated on the longer sentence, creating a total effective sentence of three years and six months’ imprisonment. A minimum term of two years and six months’ imprisonment was fixed before the applicant was to be eligible for parole.

The applicant seeks leave to appeal against his conviction and sentence.

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 LAL v The Queen

Details

AGLC: LAL v The Queen [2011] VSCA 111
Case: [2011] VSCA 111
Decision Date: 20 April 2011

CaseChat Overview and Summary

The matter of Lal v The Queen was heard by the High Court of Australia, where the appellant was convicted of several sexual offences against a child under the age of 16. The respondent, the Crown, argued that the appellant had committed these offences, which included sexual penetration of the child, aiding and abetting the offences, and being present at the scene of the crime. The appellant contested these charges and raised various grounds of appeal, including claims of apprehended bias by the trial judge and the admissibility of certain evidence.

The central legal issues before the court were whether the trial judge was correctly appointed, given their relation to a victim of a similar crime, and whether the jury was adequately directed on the principles of aiding and abetting and the necessity of the accused adopting or contributing to the crime. Additionally, the court examined the admissibility of certain statements made by the complainant to a medical practitioner, the reliability of video-assisted testimony, and the probative value of health and police records. The appellant argued that the trial judge's relation to the victim warranted recusal, while the Crown maintained that the connection was too tenuous to necessitate such action.

The court found that the trial judge's relation to the victim did not create a reasonable apprehension of bias, thus the judge was properly appointed. The court also determined that the jury directions were sufficient and that the evidence, including the complainant's statement and the video-assisted testimony, was admissible and of sufficient probative value. The court rejected the appellant's contention that the trial was unfair due to the distress of the complainant, finding no miscarriage of justice occurred. Consequently, the appeal was dismissed, and the appellant's convictions were upheld.

The court's final orders were that the appeal be dismissed, and the convictions and sentences imposed by the trial court were affirmed. The appellant remained convicted and sentenced for the offences as determined by the jury.

Orders