R v DWB

Case [2008] VSCA 223 12 November 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 395 of 2007

THE QUEEN
	v.
DWB

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JUDGES:	VINCENT, WEINBERG JJA and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 September 2008
DATE OF JUDGMENT:	12 November 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 223

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CRIMINAL LAW – Two complainants alleging sustained sexual abuse over 14-year period – Counts framed in presentment on ‘between dates’ basis – Particulars of some counts identified a ‘first occasion’ for a series of offences allegedly taking place over a specified period – Complainants unable to recollect specific occasions on which offending charged within ‘first occasion’ counts took place – Complainants unable to differentiate between ‘first occasion’ of alleged offending and other occasions on which they alleged they had been sexually abused – Appeal allowed – Specific act constituting an offence must be identified and distinguished from all other similar conduct

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Galbally & O’Bryan

VINCENT JA
WEINBERG JA
MANDIE AJA:

The applicant, DWB, was presented for trial in the County Court at Melbourne on 21 counts, variously formulated, of having sexually abused his two daughters, CL and SB. The jury convicted him on 19 of those counts. He was acquitted on counts 1 and 16.

The offences in question were said to have occurred over a 14-year period between January 1971 and December 1984. Counts 2 to 8 and count 10 alleged indecent assaults upon CL who was, at all relevant times, below the age of 16. These offences were said to have taken place between 1971 and 1978. Count 9 involved an act of gross indecency with CL. Counts 11 to 15 alleged indecent assaults on SB who was also, at all relevant times, below the age of 16. The offences in counts 11 to 13 were said to have taken place between about 1973 and 1977 and the offences in counts 14 and 15 between 1976 and 1980. Count 17 involved an act of gross indecency with SB. Count 18 alleged an act of sexual penetration with SB and was said to have taken place between 1981 and 1983. Counts 19 to 21 were counts of indecent assault upon SB, and were said to have taken place between about 1982 and 1984.

The Crown alleged an ongoing course of sexual abuse by the applicant. Several of the counts were said to operate as representative offences. The prosecution indicated at all times that it intended to adduce evidence not only of the particular offence the subject of each count, but also of the general pattern of sexual abuse. As indicated, each count was framed on a ‘between dates’ basis.

A number of the counts (2 to 4 and 8 to 15) were particularised in such a way that the specific conduct, which the Crown alleged gave rise to the offence charged, was described simply as the ‘first…

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 DWB

Details

AGLC: R v DWB [2008] VSCA 223
Case: [2008] VSCA 223
Decision Date: 12 November 2008

CaseChat Overview and Summary

In this case, the respondent was convicted of various sexual offences against two complainants, occurring over a 14-year period. The trial was conducted in the County Court of Victoria, and the appeal was heard by the Court of Appeal. The respondent appealed against his convictions, arguing that the charges were not sufficiently particularised, as some counts were based on a "between dates" basis and some counts identified a "first occasion" for a series of offences. The primary issue before the court was whether the charges were specific enough to allow the respondent to adequately defend himself.

The court considered the requirements of section 4AA(2) of the Crimes Act 1958 (Vic), which provides that an offence must be identified and distinguished from all other similar conduct. The court noted that the particulars of some counts identified a "first occasion" for a series of offences allegedly taking place over a specified period. However, the complainants were unable to recollect specific occasions on which the offending charged within these "first occasion" counts took place, and could not differentiate between the "first occasion" of alleged offending and other occasions on which they had been sexually abused. The court found that the charges were not sufficiently particularised, as the respondent was unable to identify the specific act constituting the offence, and the charges did not distinguish the offences from all other similar conduct.

Accordingly, the appeal was allowed, and the convictions were quashed. The court held that a specific act constituting an offence must be identified and distinguished from all other similar conduct. The court did not make any orders as to the respondent's convictions being replaced with alternative findings of guilt for lesser offences, as the court found that the evidence was insufficient to support such findings. The case serves as a reminder to prosecutors to ensure that charges are sufficiently particularised, so as to allow the accused to adequately defend themselves.

Orders