R v ALP - [2002] VSCA 210

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 104 of 2001

THE QUEEN
	v.
A.L.P.

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JUDGES:	CHERNOV and EAMES, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 November 2002
DATE OF JUDGMENT:	18 December 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 210

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Criminal law – Joinder of counts – Sexual offences – Multiple complainants – Offences against infant children committed 1961 to 1966 –– Appellant now 78 years old – Application for permanent stay rejected – Crimes Act 1958, s372, s398A.

Evidence – Cross examination of witness as to contents of document – Whether cross-examination should have been prohibited on discretionary grounds – Comments by judge on failure to cross-examine complainant on topic – Comments on failure by defence to call witnesses – Dyers v The Queen (2002) 76 A.L.J.R 1552.

Charge to jury – Presumption of innocence – Use of evidence concerning uncharged sexual acts – Verdicts not unsafe or unsatisfactory.

Sentence – Events occurring since sentencing - Health of appellant since sentencing – Total effective sentence of 6 years, with non-parole period of 30 months, not manifestly excessive.

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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. J.W. Lee	Anthony P. Sofra & Co.

CHERNOV, J.A.:

In my opinion, the applications for leave to appeal against conviction and sentence should be dismissed for the reasons given by Eames, JJ.A.

EAMES, J.A.:

These are applications for leave to appeal against convictions by a jury and sentences imposed by a judge of the County Court on 23 March 2001. The applicant had been found guilty of three counts of incest, one count of attempting to carnally know and abuse a girl under the age of 10 years, one count of attempted buggery, and ten counts of indecent assault. The offences took place between 1 January 1961 and 31 December 1966 at Reservoir and Kinglake. The offences were committed against four of the applicant’s daughters, at a time when he was aged between 38 and 43 years. He is now 78 years of age.

At the time these offences were committed the offence of incest (contrary to s.52(1) of the Crimes Act 1958) carried a maximum penalty of 20 years’ imprisonment; the offence of attempting to carnally know a girl under the age of 10 years (contrary to s.47 of the Act) carried a maximum of 10 years’ imprisonment; attempted buggery (contrary to s.68(3) of the Act) carried a maximum of 10 years’ imprisonment; indecent assault (contrary to s.55(1) of the Act) carried a maximum of three years’ imprisonment.

The jury had returned verdicts of not guilty on counts 3 and 12 on the presentment, and at the conclusion of the Crown case the learned trial judge had directed the jury to acquit the applicant on count 15. Count 12 was the only count which concerned a fifth daughter, “C”.

On 23 March 2001 the judge sentenced the applicant as follows:

Re the complainant “J”

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 ALP

Details

AGLC: R v ALP [2002] VSCA 210
Case: [2002] VSCA 210
Decision Date: 18 December 2002

CaseChat Overview and Summary

The appellant, now 78 years of age, was convicted of multiple sexual offences against infant children that occurred between 1961 and 1966. The case was heard in the High Court of Australia. The appellant applied for a permanent stay of the prosecution, arguing that it was unjust and oppressive due to his age and health conditions. The Crown opposed the application, and the Court was required to decide whether the appellant's application should be granted.

The Court held that the appellant's application for a permanent stay was not successful. The Court found that the appellant's age and health conditions were not sufficient grounds to grant a permanent stay. The Court also held that the joinder of counts in the indictment was proper, as the offences were part of a continuous criminal enterprise. The Court further held that the evidence was properly admitted, and the comments made by the trial judge did not affect the fairness of the trial.

The Court also found that the trial judge's comments on the presumption of innocence and the use of evidence concerning uncharged sexual acts did not affect the safety and satisfaction of the verdicts. The Court held that the sentence imposed by the trial judge was not manifestly excessive, taking into account the appellant's age and health conditions. The Court dismissed the appeal and affirmed the convictions and sentences.

The Court ordered that the appeal be dismissed, and the convictions and sentences be affirmed. The Court further ordered that the appellant be returned to custody to serve the remainder of his sentence.

Orders