PCR v The Queen - [2013] VSCA 224

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0060
PCR	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	BUCHANAN, NEAVE and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 August 2013
DATE OF JUDGMENT/ORDER:	28 August 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 224
1^st revision 29 Aug 2013, para 50; 2^nd revision 2 Sept 2013, catchwords; 3^rd revision 6 Sept 2013, para 2
JUDGMENT APPEALED FROM:	Unreported, County Court of Victoria, Judge Murphy, Date of Sentence 17 February 2012

---

CRIMINAL LAW – Sexual offences – Commencement of a hearing in a criminal proceeding for the purposes of cl 12 of Schedule 4 of the Criminal Procedure Act 2009 (Vic) – Recording of a telephone conversation is not an interception of a communication passing over a telecommunications system within the meaning of s 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) – Evidence admitted as admissions not tendency evidence – Evidence of uncharged acts against the complainant has significant probative effect – Section 97(1)(b) of the Evidence Act 2008 (Vic) – Conversation constituted an admission – A verdict of attempted sexual penetration unsafe as evidence was equivocal – Offender re-sentenced.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G J Traczyk	Griese Lawyers
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

After a second trial in the County Court, the appellant was convicted on one charge of an indecent act with or in the presence of a child under 16, nine charges of sexual penetration of a child under 16, one charge of attempted sexual penetration of a child under 16 and one charge of making a threat to kill. The jury in the first trial were discharged without reaching a verdict.

A plea was conducted and the appellant was sentenced to be imprisoned for a term of 6 years on each of two charges of sexual penetration, for a term of 5 years on each of three charges of sexual penetration, for a term of 5 years and 6 months on each of three charges of sexual penetration, for a term of 7 years on one charge of sexual penetration, for a term of 3 years on the charge of attempting sexual penetration, for a term of 1 year on the charge of indecent act and for a term of 2 years on the charge of making a threat to kill. With a measure of cumulation, a total effective sentence of 11 years’ imprisonment was produced. A non-parole period of 7 years and 9 months’ imprisonment was fixed.

The appellant sought leave to appeal on seven grounds. A single judge of the Court granted leave to appeal on one ground and refused leave to appeal on the other grounds. The appellant has elected to renew before this Court his application for leave to appeal on all but one of the grounds refused by the single judge.

The appellant is the former de…

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 PCR v The Queen

Details

AGLC: PCR v The Queen [2013] VSCA 224
Case: [2013] VSCA 224
Decision Date: 28 August 2013

CaseChat Overview and Summary

In the matter of PCR versus The Queen, the court examined the admissibility of recorded telephone conversations and uncharged acts in a criminal proceeding. The appellant, PCR, was on trial for sexual offences and the central issue revolved around the interpretation of the commencement of a hearing under the Criminal Procedure Act 2009 (Vic) and the admissibility of intercepted communications under the Telecommunications (Interception and Access) Act 1979 (Cth). Additionally, the court had to consider whether evidence of uncharged acts against the complainant was admissible under the Evidence Act 2008 (Vic) and whether it constituted an admission. The High Court of Australia reviewed the case to determine whether the recording of the telephone conversation qualified as an interception and if the uncharged acts evidence was appropriately admitted.

The primary legal issue was whether the recording of the telephone conversation was an interception of a communication passing over a telecommunications system under the Telecommunications (Interception and Access) Act 1979 (Cth). The court also had to decide if the evidence of uncharged acts against the complainant was admissible under s 97(1)(b) of the Evidence Act 2008 (Vic) and if it constituted an admission. Another significant issue was whether the verdict of attempted sexual penetration was safe given the equivocal nature of the evidence. The court's analysis required it to balance the probative value of the evidence against the potential prejudice to the appellant.

The court held that the recording of the telephone conversation did not constitute an interception of a communication passing over a telecommunications system under the federal act. The evidence of uncharged acts against the complainant was deemed admissible and constituted an admission under s 97(1)(b) of the Evidence Act 2008 (Vic). The court found that the probative effect of the uncharged acts evidence significantly outweighed any prejudicial effect. However, due to the equivocal nature of the evidence, the verdict of attempted sexual penetration was deemed unsafe. Consequently, the appellant was re-sentenced.

The final orders included the quashing of the verdict of attempted sexual penetration and the re-sentencing of the appellant. The court's decision highlighted the importance of the proper interpretation of legislative provisions and the careful consideration of evidence admissibility in criminal proceedings.

Orders