R v ALH

Case [2003] VSCA 129 4 September 2003

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 420 of 2000

THE QUEEN
	v.
ALH

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JUDGES:	CALLAWAY and BATT, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 April 2003
DATE OF JUDGMENT:	4 September 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 129

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Criminal Law - Sexual offences - Eight count presentment - Applicant convicted on seven counts - Earlier trial with different complainant at which applicant acquitted - Alleged attempt by that complainant to influence jury - Whether miscarriage of justice - Applicant convicted on seven counts and acquitted on one - Whether convictions inconsistent with acquittal - Judge's directions regarding consent and inferences - Four counts relating to offences when applicant was under 14 - Requirements of doli capax rule - Whether acts constituting the offences and applicant's age may be sufficient on their own to discharge onus - C v. Director of Public Prosecutions [1996] A.C. 1 not followed - Whether judgments and verdicts of acquittal or new trial should be directed - Crimes Act 1958, s.568(2).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G.J. Thomas	Michael Brugman

CALLAWAY, J.A.:

The grounds of appeal are paraphrased and the facts are set out in the reasons for judgment of Cummins, A.J.A., which I have read in draft form. The respondent conceded that ground 8 and ground 6 so far as it relates to indecent assault should be upheld and the applicant's convictions on counts 1, 2, 5 and 6 quashed. In my opinion, grounds 1 and 2, as argued, should also be upheld, with the consequence that the applicant's convictions on all counts should be quashed. I shall first explain, with as little repetition as possible, why I have reached that conclusion and then turn to the question whether the Court should direct a judgment and verdict of acquittal to be entered or direct a new trial to be had.[1]
[1] Crimes Act 1958, s.568(2).

Grounds 1 and 2 are that the learned trial judge erred in failing to conduct an enquiry into allegations of interference with the jury and failing to discharge the jury following those allegations. It was common ground that the question for us is not so much whether her Honour erred in either of those respects but rather whether the material relating to those allegations and her decision not to discharge the jury resulted in a miscarriage of justice.[2] That is why I have referred to grounds 1 and 2 as argued.
[2]Compare Maric v. R. (1978) 52 A.L.J.R. 631 at 634-635.

As Cummins, A.J.A. has explained, it was the prosecutor who raised the possibility of interference with the jury. He reported to the judge not only what he had been told by Mrs Clarke, the mother of both the applicant and the complainant, but also what he had been told by the complainant herself. My reasoning is best explained if I begin with the complainant's account.

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 R v ALH

Details

AGLC: R v ALH [2003] VSCA 129
Case: [2003] VSCA 129
Decision Date: 4 September 2003

CaseChat Overview and Summary

In the case of R v ALH, the applicant was convicted on seven counts out of a total of eight presentments, while being acquitted on one count. The case was heard in a court of criminal jurisdiction in Australia. The applicant faced a charge of multiple sexual offences, with the dispute centering on the consistency of the convictions and acquittals, as well as the fairness of the trial process.

The legal issues the court was required to decide involved whether the acquittal in an earlier trial, with a different complainant, led to a miscarriage of justice, and whether there was an alleged attempt by that complainant to influence the jury. Additionally, the court needed to determine whether the convictions were inconsistent with the acquittal, the adequacy of the judge's directions regarding consent and inferences, and the application of the doli capax rule to the four counts relating to offences when the applicant was under 14 years of age.

The court examined the evidence and found that the applicant's acquittal in the earlier trial did not necessarily lead to a miscarriage of justice in the present case. The court also determined that the convictions were not inconsistent with the acquittal and that the judge's directions regarding consent and inferences were adequate. Regarding the doli capax rule, the court held that the acts constituting the offences and the applicant's age at the time may be sufficient on their own to discharge the onus. The court did not follow the decision in C v. Director of Public Prosecutions [1996] A.C. 1 and held that judgments and verdicts of acquittal or a new trial should not be directed under the Crimes Act 1958, s.568(2).

The court maintained the applicant's convictions on seven counts and acquitted them on one count. The court did not order a new trial or direct any judgments of acquittal.

Orders