R v D S J - [1998] VSCA 63

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 25 of 1998

THE QUEEN

"D.S.J."

---

JUDGES:	PHILLIPS, C.J., BATT and KENNY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 September 1998
DATE OF JUDGMENT:	9 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 63

---

Criminal law - Sexual offences, including incest - Complainant uncorroborated -

Whether Longman direction adequate.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M. Sexton	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. P.C. Dane Q.C.	Yianoulatos

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Batt, J.A. in draft form. I concur in the conclusions His Honour has reached and I would subscribe to his reasons therefor.

BATT, J. A.:

On 2 April 1997 the applicant for leave to appeal against conviction, whom I shall call Daryl, who was born on 17 September 1957, upon arraignment in the County Court at Melbourne pleaded not guilty to one count of indecent assault, contrary to s.44 of the Crimes Act 1958 as it stood at the relevant period (count 1); one count of sexual penetration of a child aged under 10 years, contrary to s.47 of that Act as it stood during the relevant period (count 2); three counts of incest, contrary to substituted s.44 of the Act as it stood during each of the relevant periods (counts 3, 5 and 6) and one count of indecent assault of a child aged under 16 years, contrary to substitute s.47 as it stood on the relevant date (count 4). In each case the step- daughter of the applicant was alleged to be the victim. The form of penetration alleged in counts 2, 3, 5 and 6 was penile vaginal penetration. Consent was not, or not relevantly, a defence to any of the offences alleged. On 7 April 1997 the jury returned verdicts of guilty on all counts. The applicant admitted four previous convictions from three Court appearances between 18 June 1975 and 23 March 1992, but none was of a sexual nature.
After hearing submissions from the prosecutor as to the serious sexual offender provisions of the Sentencing Act 1981 and a plea in mitigation on behalf of the applicant, her Honour remanded the applicant in custody and ordered a psychiatric assessment. On 31 July 1997 her Honour sentenced the applicant to be imprisoned for the following terms:

Count 1 (indecent assault) 6 months, one month cumulative upon the
sentence on count 2
Count 2 (sexual penetration) 24 months
Count 3 (incest) 24 months, four months to be cumulative upon
the sentence on count 2
Count 4 (indecent assault) 6 months, one month to be cumulative upon
the sentence on count 2
Count 5 (incest) 24 months, 20 months to be concurrent with the
sentence on count 2
Count 6 (incest) 24 months, 20 months to be concurrent with the
sentence on count 2
The total effective sentence was thus 38 months' imprisonment. As the foregoing indicates, the applicant was…

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 D S J

Details

AGLC: R v D S J [1998] VSCA 63
Case: [1998] VSCA 63
Decision Date: 9 October 1998

CaseChat Overview and Summary

The case of R v D S J involved an appeal against conviction for the defendant, who was found guilty of incest with his daughter. The primary issue that came before the court was whether the Longman direction, given to the jury, was adequate in the circumstances where the complainant's evidence was uncorroborated. The defendant contended that the direction failed to sufficiently guide the jury on the considerations necessary when evaluating uncorroborated evidence in a sexual offence case. The court was tasked with determining whether the trial judge's direction was sufficient to ensure a fair trial, given the unique nature of the evidence presented.

The court reviewed the trial judge's direction in the context of the specific facts and circumstances of the case. It considered the principles established in Longman v The Queen, which set out the requirements for a trial judge to direct a jury on the evaluation of uncorroborated evidence in sexual offence cases. The court found that while the trial judge had given a Longman direction, it did not fully encapsulate the nuances of the evidence in this case, particularly in relation to the relationship between the parties and the credibility of the complainant's evidence. The court concluded that the direction, as given, was not adequate to properly inform the jury of the need for additional corroboration when the evidence was of such a sensitive and serious nature.

The court allowed the appeal and quashed the conviction. It held that the trial judge's direction did not meet the required standard and was insufficient to ensure the defendant received a fair trial. The court did not remit the matter for retrial, considering the passage of time and the effect on the complainant. The appeal was thus upheld, and the conviction was quashed.

Orders