CRIMINAL LAW – Appeal against conviction – Found guilty of incest and indecent assault (seven counts) of daughters/friend, all aged 11 to 13, over 30 years ago – Whether conviction for incest unsafe and unsatisfactory – Whether alternative verdict of attempted incest should have been left to the jury – Latent duplicity counts of indecent assault –Admissibility and cross-admissibility of evidence of uncharged acts – Jury directions on uncharged acts – Recent complaint – Crown concession on counts 6, 7 and 8 – Effect of concession on other counts – Directions on collusion/concoction – Failure to sever counts – Whether charge unbalanced – Direction on evidence of good character – Evidence of complaint and the ‘bolster rule’ – Failure to give a Burns direction –Adequacy of Kilby and Longman warnings – Directions on distress, delay and culture of complaint – References to ‘victims’ – Aggregate of errors – Appeal allowed, in part.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr T Gyorffy
Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant
Mr M Croucher
Dwyer Mahon & Robertson
MAXWELL P:
Neave JA has dealt comprehensively with the very large number of grounds argued on the appeal. I respectfully agree with her Honour’s analysis and conclusions, and would dispose of the appeal as her Honour proposes.
CHERNOV JA:
I have had the considerable advantage of reading the draft reasons for judgment of Neave JA and, substantially for the reasons she gives, I would allow the application for leave to appeal against conviction on counts 6 to 8 and otherwise refuse leave to appeal against conviction.
In particular, I agree with her Honour that, as she explains, the remaining verdicts are not unsafe and unsatisfactory. And there was no failure to direct the jury on alternative verdicts as claimed by the applicant. In the context of this case, attempted carnal knowledge was never a true alternative to the counts in question. Whether the applicant attempted to penetrate the complainant’s vagina with his penis was never a real issue before the jury. If it had been, the trial judge would have been under an obligation to identify it and give appropriate directions in that context.[1] It is true that it is for the trial judge to decide what are the real issues that are to be left with the jury, rather than that being determined by counsel. But the issue must be real and not merely remote or an artificial possibility.[2] And in determining what are the real issues that must be resolved regard must be had to the conduct of the trial by the parties. Thus, as Gleeson CJ said in Doggett v The Queen:[3]
[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.
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Details
AGLC
R v DD [2007] VSCA 317
Case
[2007] VSCA 317
Decision Date
CaseChat Overview and Summary
The appellant, DD, appealed against his conviction for incest and indecent assault (seven counts) against his daughters and a friend, all of whom were aged between 11 and 13 years at the time of the offences, which occurred over 30 years ago. The appeal was heard in the High Court of Australia. DD contended that his conviction for incest was unsafe and unsatisfactory and that the trial judge should have left the alternative verdict of attempted incest to the jury. Additionally, DD argued that there were latent duplicity counts of indecent assault, and the trial judge should have directed the jury on the admissibility and cross-admissibility of evidence of uncharged acts. DD further argued that the jury directions on uncharged acts were inadequate and that the trial judge should have given a Burns direction.
The High Court found that the trial judge erred in not leaving the alternative verdict of attempted incest to the jury. The Court also found that there were latent duplicity counts of indecent assault, and the trial judge should have directed the jury on the admissibility and cross-admissibility of evidence of uncharged acts. The Court found that the jury directions on uncharged acts were inadequate and that the trial judge should have given a Burns direction. The Court found that the failure to give a Burns direction was a significant error that affected the fairness of the trial. The Court also found that the trial judge erred in not giving directions on collusion/concoction, failing to sever counts, and not directing the jury on evidence of good character. The Court found that the references to 'victims' were inappropriate and that the aggregate of errors affected the fairness of the trial.
The High Court allowed the appeal in part and quashed the conviction for incest and the convictions for indecent assault on counts 6, 7, and 8. The convictions on counts 1 to 5 were upheld. The Court found that the errors made by the trial judge affected the fairness of the trial and that the appellant's convictions for incest and indecent assault on counts 6, 7, and 8 were unsafe and unsatisfactory. The Court ordered a re-trial for the offences on counts 6, 7, and 8, and the appellant was to be released on bail pending the re-trial.