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Mro v The Queen

Mro v The Queen

Case [2010] VSCA 240 23 September 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0957

MRO
	v
THE QUEEN

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JUDGES	NETTLE, NEAVE JJA and BEACH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 August 2010
DATE OF JUDGMENT	23 September 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 240
JUDGMENT APPEALED FROM	(Unreported, County Court of Victoria, Judge Douglas, 16 December 2008); and Ruling dated 26 June 2008 (Unreported, County Court of Victoria, Judge Howard)

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CRIMINAL LAW – Conviction – Applicant found guilty of multiple counts of sexual offences against three complainants and making child pornography, and pleaded guilty to count of possessing child pornography – Severance of presentment and separate trials – Evidence – Cross-admissibility – Crimes Act 1958, ss 397(3) and (3AA), 398A – Lack of commonality or insufficient pattern of conduct between allegations of one complainant and those of other complainants – R v Papamitrou (2004) 7 VR 375, applied – Directions otherwise sufficient – Uncharged acts not incorrectly characterised as evidence of grooming – Application granted and appeal allowed – Convictions quashed – Retrial ordered – Applicant re-sentenced on remaining count.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr S R Johns	Lethbridges Barristers & Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA
NEAVE JA
BEACH AJA:

The applicant, MRO, was presented in the County Court on three counts of indecent assault (counts 1, 2 and 3), three counts of committing an indecent act with a child under 16 years (counts 4, 5 and 9) and counts of making or producing child pornography (count 6), causing a person under 18 years to be concerned in the making or production of child pornography (count 7) and attempted incest (count 8). After a 13 day trial the jury acquitted MRO of counts 3 and 8 but found him guilty on all other counts.

After being convicted of these offences, the applicant pleaded guilty to a count of knowingly possessing child pornography, arising out of a separate presentment, and was sentenced for this offence at the same time that he was sentenced for the other counts. (For convenience this is described as count 10.) After hearing a plea in mitigation of sentence, the learned trial judge sentenced the applicant as follows:

Count

Offence

Maximum

Sentence

Cumulation

Presentment C0705969.1

1

Indecent assault

5 years’ imprisonment[1]

6 months’ imprisonment

1 month

2

Indecent assault

5 years’ imprisonment

6 months’ imprisonment

1 month

4

Indecent act with a child under 16 years

10 years’ imprisonment[2]

12 months’ imprisonment

2 months

5

Indecent act with a child under 16 years

10 years’ imprisonment

15 months’ imprisonment

2 months

6

Making or producing child pornography

10 years’ imprisonment[3]

2 years’ imprisonment

9 months

7

Causing a person under 18 years to be concerned in the making or production of child pornography

10 years’ imprisonment[4]

2 years’ imprisonment

9

Indecent act with a child under 16 years

10 years’ imprisonment

3 years’ imprisonment

Base sentence

Presentment C0705969.

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 Mro v The Queen

Details

AGLC: Mro v The Queen [2010] VSCA 240
Case: [2010] VSCA 240
Decision Date: 23 September 2010

CaseChat Overview and Summary

Mro was convicted of multiple counts of sexual offences against three complainants and making child pornography, and pleaded guilty to a count of possessing child pornography. Mro appealed against his conviction, arguing that the trial judge erred in law by failing to sever the charges against him and order separate trials. The High Court of Australia heard the appeal.

The legal issue before the court was whether the trial judge erred in law by not severing the charges and ordering separate trials. The court considered whether there was a lack of commonality or an insufficient pattern of conduct between the allegations of one complainant and those of the other complainants, which would warrant separate trials. The court also considered whether the directions given to the jury were sufficient and whether the evidence of uncharged acts was incorrectly characterised as evidence of grooming.

The court found that the trial judge erred in law by not severing the charges and ordering separate trials. The court found that there was a lack of commonality or an insufficient pattern of conduct between the allegations of one complainant and those of the other complainants, which warranted separate trials. The court found that the directions given to the jury were otherwise sufficient, and that the evidence of uncharged acts was not incorrectly characterised as evidence of grooming. The court allowed the appeal, quashed the convictions, and ordered a retrial. Mro was re-sentenced on the remaining count of possessing child pornography.

No further orders were made by the court.

Orders