PG v The Queen - [2013] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0026

P G
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, HARPER JA and BEACH AJA
WHERE HELD:	SHEPPARTON
DATE OF HEARING:	24 September 2012
DATE OF JUDGMENT:	6 February 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 09
JUDGMENT APPEALED FROM:	DPP v [P G] (Unreported, County Court of Victoria, Judge Cotterell, 30 November 2010 (date of conviction), 31 January 2011 (date of sentence))

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CRIMINAL LAW – Appeal – Conviction – Multiple counts of indecent assault and sexual penetration of a child under 10 years – Complainants the daughters of the offender – Whether evidence included as coincidence evidence without being properly identified – Whether trial judge erred in permitting jury to have regard to evidence given by younger sister of the complainants about incidents occurring when she was very young – Whether verdicts unsafe and unsatisfactory – Conviction on one count quashed – Appeal otherwise dismissed – Total effective sentence of 8 years and 5 months’ imprisonment with a non parole period of 6 years and 6 months – Sentence reduced by reason of quashing of one count – Original sentences otherwise reimposed – Resentenced to 8 years’ imprisonment with a non parole period of 6 years and 2 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Danos	Macgregor
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of Harper JA and Beach AJA. I agree with the orders which their Honours propose, for the reasons they give.

HARPER JA

BEACH AJA:

Introduction

They come in a long and immensely sad line, seemingly without pause or end. They are cases in which juries are asked to fulfil the onerous task of deciding whether allegations of serious sexual criminality have been proved beyond reasonable doubt. If they have, or if the accused has pleaded guilty, the judge must determine upon an appropriate sentence. And in either case, the accused has a right to seek leave to appeal. Rarely is there a clearly correct answer to all the questions posed; almost always the result will profoundly affect at least one of the protagonists.

These cases, as with all in the criminal lists, impose duties of considerable – in some instances awesome – significance upon those with the responsibility to decide. Allegations of sexual misconduct, especially if the accused is a close family member, are, however, in a class of their own. They not only often contain at least the seeds of tragedy, but also commonly pose problems of almost impossible difficulty. Frequent among these are multiple allegations of serious offending over many years – offending which is often said to have occurred not only long ago, but also when the victim was too young or too traumatised to remember specifics such as dates and places. Even where neither youth, nor a mind affected by trauma, nor any…

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 The Queen

Details

AGLC: PG v R [2013] VSCA 9
Case: [2013] VSCA 9
Decision Date: 6 February 2013

CaseChat Overview and Summary

The appellant, PG, appealed against his conviction and sentence for multiple counts of indecent assault and sexual penetration of a child under 10 years, with the complainants being his own daughters. The appeal was heard in the High Court of Australia. PG contested the admissibility of certain evidence, arguing that it was included as coincidence evidence without proper identification. Additionally, he challenged the trial judge's decision to allow the jury to consider evidence from his younger daughter regarding incidents that occurred when she was very young. The central issues in the appeal were whether these evidentiary decisions constituted errors and if the verdicts were unsafe and unsatisfactory. The High Court examined these points to determine if the appeal should be upheld and if any modifications to the sentence were warranted.

In its judgment, the court addressed the issues raised by PG concerning the evidence. It found that while there were some concerns about the handling of coincidence evidence, these did not fundamentally undermine the overall safety and satisfaction of the verdicts. However, the court did identify an error in permitting the jury to consider the evidence from the younger daughter, which was deemed unreliable due to her age at the time of the incidents. Consequently, one count of the conviction was quashed. Despite this, the court determined that the remaining convictions were secure, and the appeal was otherwise dismissed. The court then proceeded to reassess the sentence, reducing it by reason of the quashed count, and reimposed the original sentences for the remaining counts. The appellant was ultimately resentenced to 8 years' imprisonment with a non-parole period of 6 years and 2 months.

The court's decision resulted in a reduction of the appellant's sentence due to the quashing of one count of the conviction. While the majority of the convictions were upheld, the court's ruling underscores the importance of stringent evidentiary standards, particularly concerning the reliability of young witnesses. The final orders confirmed the reduced sentence, reflecting the court's determination that the remaining convictions were reliable and the sentence was proportionate to the crimes committed.

Orders