P a v the Queen - [2010] VSCA 85

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 743 of 2008

PA
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BUCHANAN and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 March 2010
DATE OF JUDGMENT:	23 March 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 85
JUDGMENT APPEALED FROM:	R v PA (County Court of Victoria, Judge Wodak; applicant convicted 7 March 2008; applicant sentenced 3 July 2008)

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CRIMINAL LAW – Appeal – Conviction – Sexual offences – Two periods of offending – Complaint evidence in each period – Whether capable of constituting recent complaint – Whether first reasonable opportunity – Whether related to offences charged – Defence used complaint evidence to attack complainant’s credibility – No miscarriage of justice – Verdicts not unreasonable – Application refused.

CRIMINAL LAW – Trial – Whether judge adequately summarised evidence, counsel’s addresses – Jury provided with transcript of evidence – Jurors undertook individual reading – Whether permissible – Crimes (Criminal Trials) Act 1999 (Vic) s 19.

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APPEARANCES:	Counsel	Solicitors
For the Respondent	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr M J Croucher with Mr K J Dernelley

MAXWELL P :

The applicant was tried in the County Court on 11 counts, all relating to the same complainant. He was convicted on six counts, comprising three counts of rape, two counts of indecent assault and one count of threatening to inflict serious injury. He was sentenced as follows:

Count Offence Verdict Maximum Sentence Cumulation

1 Indecent assault Guilty 10y 2y 6m

2 Sexual penetration of a child under 10 Not guilty 25y - -

3 Indecent assault Not guilty 10y - -

4 Rape Guilty 25y 5y BASE

5 Incest Not guilty 25y - -

6 Indecent assault Guilty 10y 1y 3m

7 Rape Guilty 25y 5y 1y 3m

8 Incest Not guilty 25y - -

9 Threat to inflict serious injury Guilty 5y 2y 3m

10 Rape Guilty 25y 5y 1y 3m

11 Incest Not guilty 25y - -

TES: 8y 6m

NPP: 6y 6m

Sentenced as a serious sexual offender in respect of counts 6, 7 and 10.

Of the counts he faced, three related to the period between February 1986 and April 1988, to which I will refer as ‘the first period’, when the complainant was between six and eight years of age. The remaining counts related to a short period in 2004, when the complainant was 24. I will refer to that as ‘the second period’.

It will be apparent from the table set out above that for each rape count there was a corresponding alternative count of incest. The applicant was acquitted by direction on each of the incest counts. This occurred at the instigation of defence counsel who pointed out – correctly – that the Crown case was in essence rape or nothing. That is, there was no evidentiary basis for an incest count in the alternative.

The applicant now seeks leave to appeal against conviction.…

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 P a v the Queen

Details

AGLC: P a v the Queen [2010] VSCA 85
Case: [2010] VSCA 85
Decision Date: 23 March 2010

CaseChat Overview and Summary

The matter before the court was an appeal against a conviction for sexual offences committed during two separate periods. The respondent, the Crown, successfully prosecuted the appellant, P a, for multiple instances of sexual assault against a single victim over two distinct time frames. Each period of offending was supported by the victim's complaint evidence. The appellant contested the sufficiency of the complaints, arguing they did not constitute recent complaints and that the first reasonable opportunity to complain was not met. Additionally, the appellant claimed that the complaints were not related to the offences charged. The appellant also sought to undermine the credibility of the complainant by using the complaint evidence. The appeal centred on whether the trial judge adequately summarised the evidence and counsels' addresses, the provision of a transcript of the evidence to the jury for individual reading, and whether these actions led to a miscarriage of justice or rendered the verdicts unreasonable.

The court examined the legal issues surrounding the adequacy of the trial judge's summary of the evidence and counsels' addresses. The appellant argued that the judge failed to accurately summarise the evidence and that the jury's individual reading of the transcript constituted an irregularity. The court considered whether the jury's access to the transcript was permissible under section 19 of the Crimes (Criminal Trials) Act 1999 (Vic) and whether this led to a miscarriage of justice or made the verdicts unreasonable. The court also assessed whether the appellant's use of the complaint evidence to attack the complainant's credibility was appropriate and if the verdicts were unreasonable given the evidence presented.

The court found that the trial judge's summary of the evidence and counsels' addresses was adequate and that the provision of a transcript for individual reading by the jury was permissible under the relevant legislation. The court concluded that there was no miscarriage of justice and that the verdicts were not unreasonable. The appellant's use of the complaint evidence to attack the complainant's credibility was deemed appropriate within the context of the trial. Consequently, the appeal was dismissed.

The court ordered that the appeal be dismissed and the convictions and sentences imposed by the trial court be upheld. The court did not grant any relief to the appellant and confirmed the validity of the trial process and the jury's verdicts.

Orders