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PPP v The Queen

PPP v The Queen

Case [2010] VSCA 110 10 May 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

PPP	No 503 of 2008
PPP	v
THE QUEEN

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JUDGES	NEAVE and REDLICH JJA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 September 2009
DATE OF JUDGMENT	10 May 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 110
JUDGMENT APPEALED FROM	R v PPP (Unreported, County Court of Victoria, Judge Campton, 19 December 2007)

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CRIMINAL LAW – Uncharged acts – Applicant’s sexual interest in complainant – Proof to criminal standard – R v HML (2008) 235 CLR 334 , R v Sadler (2008) 20 VR 69 applied – Whether uncharged acts a ‘sufficiently important step’ in reasoning on counts of procurement.

Offence of procurement of sexual penetration by threats or intimidation – s 57 Crimes Act 1958 – Elements of offence – Threats need not be contemporaneous with act of penetration – Intention to procure – Whether knowledge that threats had procured act of penetration necessary.

Latent ambiguity – Multiple rape counts – Particular of ‘1^st occasion’ provided – Whether additional distinguishing feature required to avoid duplicity – DPP v Lewis [1997] 1 VR 391, applied – DWB v R (2008) 20 VR 112 distinguished – Complainant’s recollection of ‘1^st occasion’ – Whether prejudice to applicant by .’1^st occasion’ particular.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr T Kassimatis	Lethbridges
Forthe Crown	Mr J D McArdle QC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I have had the advantage of reading the draft judgment of Redlich JA. I agree with his Honour, for the reasons he gives, that the convictions on counts 4, 5, 6, 8 and 12 (rape) must be quashed and that a re-trial should be ordered on those counts. I also agree with him that grounds of appeal 2 and 3 relating to the procurement offences are not made out and as to the manner in which the applicant should be re-sentenced.

I agree with Redlich JA as to the principles which apply to the particularisation of an alleged offence, by reference to the occasion on which it occurred. These may be summarised as follows:

(a) the law in Victoria continues to be as stated by Tadgell JA in Director of Public Prosecutions v His Honour Judge G D Lewis.[1] A charged act may be particularised by referring to it as the first, last or other chronologically identified act in a series of similar uncharged acts.[2] The fact that a count is particularised in that way does not, of itself, create a latent ambiguity which precludes an offender from being validly convicted of that offence. It may be noted that in R v Baker,[3] the Queensland Court of Appeal did not discuss the judgment of Tadgell JA in Director of Public Prosecutions v His Honour Judge G D Lewis.[4]
[1][1997] 1 VR 391.
[2]Ibid 398-400.
[3][2002] 1 Qd R 274 (‘Baker’).
[4]The decision was referred to only to specify the…

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 PPP v The Queen

Details

AGLC: PPP v The Queen [2010] VSCA 110
Case: [2010] VSCA 110
Decision Date: 10 May 2010

CaseChat Overview and Summary

The matter before the court involved the applicant, PPP, facing charges of procurement of sexual penetration by threats or intimidation. The applicant was alleged to have procured sexual penetration from the complainant by threats or intimidation on multiple occasions. The case was heard in the Supreme Court of Victoria. The central issues that the court had to decide involved the admissibility of uncharged acts to establish a pattern of behaviour, the necessity of the applicant's knowledge that threats had procured the act of penetration, and the sufficiency of the particulars of the charges to avoid duplicity.

The court had to determine whether the uncharged acts were sufficiently important steps in the reasoning on the counts of procurement, as per the principles established in R v HML and R v Sadler. Additionally, the court had to consider the elements of the offence under s 57 of the Crimes Act 1958, specifically whether threats need to be contemporaneous with the act of penetration and whether the applicant's knowledge that threats had procured the act was necessary. The court also examined the issue of latent ambiguity and duplicity in the particulars of the charges, particularly focusing on the complainant's recollection of the '1st occasion' and whether it prejudiced the applicant.

The court held that the uncharged acts were admissible as they were sufficiently important steps in the reasoning process, allowing the jury to form a more coherent picture of the applicant's conduct. The court also determined that knowledge that threats had procured the act was not a necessary element of the offence. Regarding the charges, the court found that the particulars were sufficient to avoid duplicity, as there was no latent ambiguity, and the complainant's recollection of the '1st occasion' did not prejudice the applicant. The applicant's conviction was upheld on all counts.

The court dismissed the application, confirming the applicant's conviction on all counts of procurement of sexual penetration by threats or intimidation. The applicant's appeal was not successful, and the original conviction stood.

Orders