R v Bo - [2006] VSCA 247

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 72 of 2005
No. 73 of 2005

THE QUEEN
	v.
BO

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JUDGES:	VINCENT and NETTLE, JJ.A. and KING, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 October 2006
DATE OF JUDGMENT:	21 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 247

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Criminal law – Conviction – Wilfully committing an indecent act with or in the presence of a child under 16 – Taking part in an act of sexual penetration with a child under the age of 16 – Victims related to applicant – Two separate trials – Sufficiency of propensity warning – Miscarriage of justice – Whether Palmer direction required – Whether Longman warning insufficient – Unsafe and unsatisfactory – Adequacy of directions in respect of identification evidence – Whether sufficient direction given in respect of cross-admissibility of evidence – Whether trial judge erred in her directions as to complaint – Applications dismissed.
Criminal law – Sentence – Whether sentencing judge erred in finding as aggravating the offence that the applicant had applied for a separate trial – Whether the sentencing judge afforded sufficient weight to the length of time since the offending and the rehabilitation during that time – Whether orders for cumulation reflected the criminality of each episode of offending – Manifest excess – Whether sentencing judge erred by failing to give effect to the verdict of the jury acquitting the applicant of the threat to kill – Applications dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms A. Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr S. Gillespie-Jones with Mr M.W.S. Duckett	Paul Vale Pty.

VINCENT, J.A.:

On 22 February 2005, the applicant was found guilty by a jury on 13 counts of wilfully committing an indecent act with or in the presence of a child under the age of 16[1] and five counts of taking part in an act of sexual penetration with a child under the age of 16[2] (the first trial - Presentment No. S00563438.1).
[1]Counts 1, 2, 4, 7, 8, 10, 12, 13, 14, 15, 16, 17 and 20 on Presentment No. S00563438.1.
[2]Counts 3, 5, 6, 11 and 19 on Presentment No. S00563438.1. The applicant was found not guilty in relation to one count of committing an indecent act with or in the presence of a child under the age of 16 (count 21); one count of taking part in an act of sexual penetration with a child under the age of 16 (count 18); and one count of making a threat to kill (count 9).

Six days later, he was found guilty on one count of wilfully committing an indecent act with or in the presence of a child under the age of 16[3] (the second trial – Presentment No. S00563438.2). [4]
[3]Count 2 on Presentment No. S00563438.2. The applicant was found not guilty in relation to one count of committing an indecent act with or in the presence of a child under the age of…

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 Bo

Details

AGLC: R v Bo [2006] VSCA 247
Case: [2006] VSCA 247
Decision Date: 21 November 2006

CaseChat Overview and Summary

The applicant, R, was convicted following two trials for engaging in indecent acts and sexual penetration with children under the age of 16, related to him. The primary dispute in this case was whether the trial judge erred in her handling of evidence, particularly regarding the sufficiency of warnings about propensity evidence, the adequacy of identification evidence directions, and cross-admissibility of evidence. Additionally, the applicant contested the sentencing, arguing that the sentencing judge failed to appropriately consider certain factors such as the time since the offence, the applicant's rehabilitation, and the jury's verdict acquitting him of a threat to kill. The matter was heard by the Court of Appeal.

The court was tasked with determining whether the trial judge provided adequate warnings and directions to the jury, ensuring that the evidence was considered fairly. Specifically, it needed to assess whether the propensity warnings were sufficient, if the Palmer direction was necessary, and whether the Longman warning was adequate. The court also had to evaluate whether the trial judge's directions on identification evidence and cross-admissibility were sufficient, and if there was any error in the directions regarding the complainant's testimony. Regarding the sentence, the court had to decide if the sentencing judge correctly considered the time since the offending, the applicant's rehabilitation, and the acquittal on the threat to kill charge, as well as whether the cumulation orders appropriately reflected the criminality of each offence.

In delivering its judgment, the court found that the trial judge's directions on evidence and identification were adequate, and no miscarriage of justice had occurred. The court held that the propensity warnings, including the Longman warning, were sufficient and that no Palmer direction was necessary. It also found that the trial judge did not err in her handling of the complainant's evidence. Concerning the sentence, the court concluded that the sentencing judge appropriately considered the factors at hand and that the cumulation orders were reflective of the criminality of the offences. Consequently, the applications for appeal were dismissed.

The court dismissed the applications for appeal, upholding the convictions and sentence. The findings affirmed the trial judge's handling of evidence and directions, and the sentencing judge's consideration of the mitigating and aggravating factors. The court determined that the trial did not result in a miscarriage of justice, and the sentence was appropriate given the circumstances.

Orders