R v ARUNDELL SUPREME COURT OF VICTORIA - COURT OF APPEAL Tadgell, Charles and Callaway JJA 4, 9 June, 09 November 1998 [1998] VSCA 0102 Criminal law — Sexual offences — Complaint — Delay in making complaint — Longmanwarning — Defence counsel requested no Longmanwarning — Whether a miscarriage of justice — Evidence — Corroboration — Admissions of improper relationship — Whether corroborative or confirmatory of allegations of sexual penetration — Whether propensity warning required — Evidence of accused’s good character — Directions to jury — Questions in record of interview on complainant’s motive to lie — Time bar against prosecution — Verdicts — Whether unsafe or unsatisfactory — Sentencing — Indecent assault — Whether sentence manifestly excessive — Crimes Act 1958 (No. 6231)s. 48. .

The accused was charged with 23 counts of sexual offences against a young girl, alleged to have been committed between 1982 and 1988, when she was between seven and 13 years old. She made no complaint until 1996 in the course of therapy she was receiving for emotional problems. The allegations included a number of bizarre acts, including penetration by various objects. The complainant admitted not only to emotional disturbance in the period since the alleged offences but also to drug abuse and memory loss. In the course of an interview by police the accused denied the alleged offences, but admitted to an infatuation with the complainant and to a physical relationship with her that included being naked with her and ejaculating in her presence. He was asked two questions about why she would have made up the allegations against him.

The accused gave no evidence at the trial. The judge told counsel he thought a warning based on Longman v R.(1989) 168 C.L.R. 79 was required but that it could disadvantage the accused by drawing attention to his admissions in the record of interview. Senior counsel for the accused requested that no Longman warning be given and the judge complied with that request. In relation to evidence of the accused’s good character, the judge directed the jury that evidence of good character could not alter proven facts but was evidence which should be considered in reaching a conclusion as to whether the facts relied on by the Crown have been proved beyond reasonable doubt.

The accused was convicted on 15 of the 23 counts, including a number of counts alleging penetration. These included count 23, which alleged penetration of a child aged between 10 and 16 contrary to s. 48 of the Crimes Act 1958. This offence was alleged to have been committed between 1 January 1987 and 31 December 1988. The complainant turned 12 on 24 February 1987. Section 48(6) provided that no prosecution for an offence against s. 48 committed with or upon a person above the age of 12 years should be commenced more than 12 months after its commission.

The accused was sentenced to a total effective sentence of 11 years’ imprisonment with a…

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 Arundell

Details

AGLC: R v Arundell [1998] VSCA 102
Case: [1998] VSCA 102
Decision Date: 9 November 1998

CaseChat Overview and Summary

The accused, Arundell, was charged with 23 counts of sexual offences against a young girl, alleged to have been committed between 1982 and 1988. The girl made no complaint until 1996, during therapy for emotional problems. The accused denied the alleged offences, but admitted to an infatuation with the girl and to a physical relationship with her that included being naked with her and ejaculating in her presence. The judge declined to give a Longman warning, as requested by the accused's counsel. The accused was convicted on 15 of the 23 counts, including counts alleging penetration. The accused applied for leave to appeal against conviction on all but one count of indecent assault, on grounds that the judge erred in not giving a Longman warning, in not giving a propensity warning and in misdirecting the jury on evidence of the accused’s good character. He also contended that the evidence of the questions in the record of interview about the complainant’s motive to lie should not have been admitted, that the verdicts were unsafe and unsatisfactory and that, in respect of count 23, s. 48(6) of the Crimes Act prevented the prosecution. He also applied for leave to appeal against sentence.

The court granted leave to appeal and allowed the appeal against conviction on count 23, and granted leave to appeal and allowed the appeal against sentence. The court held that it was contrary to the policy of s. 48(6) of the Crimes Act 1958 for the accused to be put to answer in respect of so much of the period pleaded in count 23 as fell on or after the complainant’s twelfth birthday. A judgment and verdict of acquittal should be entered on that count. The court held that the accused’s admissions in his record of interview were corroborative or confirmatory of all the alleged offences, including those which alleged penetration. The court held that by requesting the judge not to give a Longman warning, the accused was not denied, but through his counsel exercised, his right to a fair trial. The court held that the direction to the jury on evidence of the accused’s good character could not be criticised. The court held that the questions in the record of interview about the complainant’s motive to lie were not improperly admitted. The court held that the verdicts were not unsafe or unsatisfactory. The court held that the sentences imposed on four of the indecent assault convictions were manifestly excessive. The court re-sentenced the accused to 12 months’ imprisonment on two of these convictions and three years on the other two, producing a total effective sentence of nine years’ imprisonment with a non-parole period of six years.

Orders