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MG v The Queen

MG v The Queen

Case [2010] VSCA 97 28 April 2010

Criminal Liability

Mens Rea & Intention

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 542 of 2009

MG
	v
THE QUEEN

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JUDGES:	WARREN CJ, NEAVE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 November 2009
DATE OF JUDGMENT:	28 April 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 97
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Lawson, 17 February 2009)

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CRIMINAL LAW – Incest – Defence that act was not intentional but occurred in the course of a dream – Direction given as to intent - Whether absence of direction that the act be a ‘conscious, voluntary and deliberate act’ necessarily fatal- whether trial judge failed to relate the evidence to the law on question of penetration - Whether trial judge failed to adequately define ‘vagina’ - Meaning of ‘vagina’ - Whether error in finding complainant competent to give evidence under Crimes Act1958 s 400- Whether trial judge adequately put applicant’s defence – Directions to the jury on the use of trial transcripts - Whether verdicts unsafe and unsatisfactory – No error made out - Applications dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Ian Hone
For the Crown	Mr C Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ
NEAVE JA
REDLICH JA:

The applicant, MG, was presented in the County Court on two counts of incest (counts 1 and 2) and one count of indecent act with a child under 16 (count 3). He entered a plea of not guilty to counts 1 and 2 and a plea of guilty to count 3. He was acquitted by a jury on count 1, but convicted on count 2. He was sentenced to three years and three months’ imprisonment on count 2 and nine months’ imprisonment on count 3. Three months of the sentence imposed on count 3 was to be served cumulatively upon the sentence imposed on count 2, resulting in a total effective sentence of three years and six months’ imprisonment. A non-parole period of 18 months was fixed. The applicant now appeals against his incest conviction and the sentence imposed for both offences.

Details of the offending

The applicant is the biological father of the complainant, who was aged 13 at the time of the offending. The complainant lived with her mother, a former long term de facto partner of the applicant for some of the time and with the applicant for the remainder. It was usual for the complainant to share the applicant’s bed once or twice a week when staying with him, despite having her own bedroom in the house. She would often fall asleep in the applicant’s bed after watching television.

The events giving rise to the applicant’s conviction and sentence took place on 25 and 26 February 2008. The applicant had spent part of the day on 25 February drinking alcohol with friends and continued to do so at home that evening. The same night, the complainant fell asleep in the applicant’s bed. She had gone to bed…

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 MG v The Queen

Details

AGLC: MG v The Queen [2010] VSCA 97
Case: [2010] VSCA 97
Decision Date: 28 April 2010

CaseChat Overview and Summary

The case of MG v The Queen involved an appeal against conviction and sentence for incest. The appellant, MG, was convicted of incestuously penetrating the complainant, his daughter, with his penis. MG sought to appeal on several grounds, including the adequacy of the trial judge's directions to the jury on the requisite intent and the definition of "vagina". MG also argued that the trial judge did not adequately define "vagina" and erred in finding the complainant competent to give evidence. The appeal was brought to the Court of Appeal in Victoria.

The primary legal issues were whether the trial judge's directions to the jury regarding intent were sufficient, whether the definition of "vagina" was adequately explained, and if the trial judge erred in finding the complainant competent to give evidence. The court also needed to determine if the verdicts were unsafe and unsatisfactory, and if the directions given to the jury on the use of trial transcripts were appropriate.

The court found that the trial judge's directions to the jury on the requisite intent were sufficient and that the definition of "vagina" was adequately explained. The court held that there was no error in finding the complainant competent to give evidence and that the verdicts were safe and satisfactory. The court also found that the trial judge adequately put the applicant's defence to the jury and that there were no errors in the directions given to the jury on the use of trial transcripts.

The court dismissed the appeal against conviction and sentence, finding no error in the trial judge's handling of the case. The appellant's applications for leave to appeal to the High Court were also dismissed.

Orders