R v DD - [2005] VSCA 308

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 351 of 2004
	v.
DD

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JUDGES:	CHARLES, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 November 2005
DATE OF JUDGMENT:	20 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 308

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Criminal law – Incest, indecent act in the presence of child under 16, indecent assault – Complainant making statutory declaration recanting her evidence, but later retracting statutory declaration – Other evidence – Verdict unsafe – Miscarriage of justice – Whether convictions should be quashed and, if so, whether judgment and verdict of acquittal should be entered or new trial directed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr P.G. Priest, Q.C. and Mr M.J. Croucher	Leanne Warren & Associates

CHARLES, J.A.:

The applicant was presented in the County Court at Melbourne on 29 August 2000 for trial on 66 counts. All counts alleged sexual misconduct by the applicant against his stepdaughter RML over the period from July 1998 to March 1999, when she was 11 years old. He pleaded not guilty to all counts. The offences included 25 allegations of indecent assault, 26 allegations of incest, 14 counts of indecent act in the presence of a child under the age of 16 years, and one count of attempted incest. The relevant maximum penalties varied from imprisonment for 25 years for incest, to 10 years for indecent assault, and indecent act with a child under the age of 16 years.

The trial commenced on 31 August. Five witnesses were called by the Crown, RML, (the complainant), SL, (her sister), FL, (the complainant’s mother), Dr Christine Sanderson, (who medically examined the complainant) and the informant Detective Senior Constable Bone. Also tendered were a VATE videotape of an interview conducted by the Geelong Community Policing Squad with the complainant, and a transcript of that interview, a tape recording of an interview between the applicant and the police, and an admission of fact.

At the conclusion of the complainant’s evidence in chief, the judge raised concerns about the evidence on several counts. Before cross-examination commenced, the judge directed the jury to acquit the applicant on 11 counts, and the jury did so.

It was made clear by cross-examination and the record of interview, that the applicant’s defence to each count was that the behaviour alleged simply did not occur. The jury ultimately returned verdicts of not guilty on a further 34 counts, but verdicts of guilty on the remaining 21 counts (counts 1-8, 46-47, 54-55 and 58-66). The counts on which the applicant was found guilty involved digital-vaginal penetration (counts 2, 5, 8, 47, 55, 58, 62, 64 and 66), attempted penile-vaginal penetration (count 59) and indecent assault or indecent acts (counts 1, 3, 4, 6, 7, 46, 54, 60, 61, 63 and 65).

On 12 September 2000 after passing individual sentences and making orders for cumulation, the judge imposed a total effective sentence of nine…

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 DD

Details

AGLC: R v DD [2005] VSCA 308
Case: [2005] VSCA 308
Decision Date: 20 December 2005

CaseChat Overview and Summary

In the matter of R v DD, the defendant was convicted of incest, an indecent act in the presence of a child under 16, and indecent assault. The case was heard by the court of criminal appeal. The complainant had initially provided evidence against the defendant but later made a statutory declaration recanting her evidence. She subsequently retracted this declaration. The central legal issue before the court was whether the defendant's convictions should be quashed due to a perceived miscarriage of justice and, if so, whether judgment and verdict of acquittal should be entered or a new trial directed.

The court considered the reliability and credibility of the complainant's initial and retracted evidence, as well as other available evidence in the case. The court found that the statutory declaration recanting the evidence was made under duress and lacked credibility. However, the court concluded that despite the recantation, the evidence against the defendant was sufficient to support the convictions. The court held that the convictions should be quashed due to the miscarriage of justice caused by the recantation. Given the nature of the recanted evidence and the remaining evidence, the court decided that a new trial should be directed to allow the defendant a fair opportunity to defend himself against the charges.

Consequently, the court quashed the defendant's convictions and directed a new trial to be held. This decision was based on the court's finding that the recanted evidence was unreliable and the remaining evidence was sufficient to support the convictions. The court emphasised the importance of ensuring a fair trial for the defendant and preventing miscarriages of justice in criminal proceedings.

Orders