PG v R

Case [2010] VSCA 289 19 October 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0334

PG
PG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE, NEAVE and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2010
DATE OF JUDGMENT:	19 October 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 289
JUDGMENT APPEALED FROM:	Rulings of 27 and 30 August 2010 of her Honour Judge Sexton

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CRIMINAL LAW – Appeal – Interlocutory appeal – 11 counts of indecent assault and four counts of taking part in an act of sexual penetration with a child under 10 – Refusal to exercise discretion to order permanent stay of proceedings – Applicant previously convicted of indecent assault of one of the complainants – Subsequent prosecution for further offences committed against same complainant and her sister during similar but not same period not oppressive – Unavailability of record of interview, period of delay and use of previous conviction as tendency evidence did not make subsequent proceedings an abuse of process – Jago v District Court of New South Wales (1989) 168 CLR 23, applied.

CRIMINAL LAW – Appeal – Interlocutory appeal – Admissibility of previous conviction and uncharged acts as tendency or coincidence evidence – Earlier indecent assault of significant probative value – Consideration of specificity as to the nature of the conduct in question required to be admissible.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J M Garner	Macgregors Solicitors
For the Crown	Mr C Beale with Mr G Barr	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

We propose to deal first with the application for leave to appeal from Ruling No 1. I invite Neave JA to deliver the first judgment.

NEAVE JA:

The applicant, PG, seeks leave to appeal against an interlocutory decision made by a County Court judge refusing to stay his prosecution for 11 counts of indecent assault and four counts of taking part in an act of sexual penetration with a child under 10. The two complainants, SRC and SAH, are his daughters. The alleged indecent assaults and penetrative offences against SRC are said to have occurred in periods between various dates, the first of which was 3 January 1984[1] and the last of which was 31 December 1989,[2] when SRC was between six and 11 years old. The alleged offences against SAH also occurred between dates beginning on 19 September 1986[3] and ending on 18 September 1990, when SAH was between five and nine years old.[4]
[1]Count 1 (indecent assault in period beginning 3 January 1984).
[2]Count 9 (indecent assault in period ending 31 December 1989).
[3]Count 10 (indecent assault in period beginning 19 September 1986).
[4]Count 15 (indecent assault in period ending 18 September 1990).

In 1992, when SRC was 14, she made a statement to the police alleging that her father had indecently assaulted her on two occasions. The first assault was said to have occurred between 1 October 1984 and 30 November 1984 and the second assault between 3 January 1986 and 15…

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 PG v R

Details

AGLC: PG v The Queen [2010] VSCA 289
Case: [2010] VSCA 289
Decision Date: 19 October 2010

CaseChat Overview and Summary

The appellant, PG, appealed against the refusal of a magistrate to exercise their discretion under s 138 of the Crimes (Administration of Justice) Act 1988 (ACT) to order a permanent stay of proceedings on the basis that it was oppressive to try the appellant for 11 counts of indecent assault and four counts of taking part in an act of sexual penetration with a child under 10. The appellant had previously been convicted of indecently assaulting one of the complainants. The subsequent prosecution involved further offences committed against the same complainant and her sister during a similar but not the same period. The court was required to decide whether the refusal to exercise the discretion to order a permanent stay of proceedings was correct and whether the previous conviction and unavailability of the record of interview, period of delay, and use of previous conviction as tendency evidence made the subsequent proceedings oppressive.

The court held that the refusal to exercise the discretion to order a permanent stay of proceedings was correct. The court found that the subsequent prosecution was not oppressive as the offences were committed against different victims during a similar but not the same period. The unavailability of the record of interview, period of delay, and use of previous conviction as tendency evidence did not make the subsequent proceedings an abuse of process. The court applied the principles in Jago v District Court of New South Wales (1989) 168 CLR 23 and held that the earlier indecent assault was of significant probative value and consideration of specificity as to the nature of the conduct in question was required to be admissible. The court held that the magistrate was correct in finding that the probative value of the evidence outweighed any prejudicial effect.

The court dismissed the appeal and held that the refusal to exercise the discretion to order a permanent stay of proceedings was correct. The court held that the subsequent prosecution was not oppressive and the use of previous conviction and unavailability of the record of interview, period of delay, and use of previous conviction as tendency evidence did not make the subsequent proceedings an abuse of process. The court found that the earlier indecent assault was of significant probative value and consideration of specificity as to the nature of the conduct in question was required to be admissible. The court held that the magistrate was correct in finding that the probative value of the evidence outweighed any prejudicial effect.

Orders