R v EO - [2004] VSCA 41

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 165 of 2002

THE QUEEN
	v.
EDELSON OLIVAR

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JUDGES:	WINNEKE, P., BUCHANAN, J.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 March 2004
DATE OF JUDGMENT:	2 April 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 41

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Criminal law – Sexual offences against child – Whether trial judge’s interventions such as to cause trial to miscarry – Delay in complaint – Whether judge’s directions adequate.

Criminal law – Sentence – Non-parole period not excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. T. Gyorffy	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. T. Kassimatis	Portelli & Co.

WINNEKE, P.:

Notwithstanding the well presented arguments of counsel for the applicant, I have come to the conclusion that the application for leave to appeal against conviction and sentence should be dismissed. I do so for the reasons given by Coldrey, A.J.A., to which I would add some comments of my own. The relevant facts have been set out in the reasons of Coldrey, A.J.A.

There were two issues which arose on this application. The resolution of them requires, perhaps, an understanding that the trial from which the application emanates was in fact a re-trial, following the failure of the jury to agree at an earlier trial. Each trial had involved the same prosecutor and the same defence counsel, who were experienced trial counsel and who, by the end of the second trial were no doubt well acquainted with the issues to be determined and “alive” to the appropriate directions to be given.

This trial, like many of its ilk, involved two major witnesses whose evidence was diametrically opposed; the complainant and the accused. The complainant gave evidence that the accused, her step-father, had been sexually assaulting her, in various houses in which the family had lived, in a systematic fashion over a period commencing when she was nine years old and terminating when she was about 15 years of age in or about 1998. There were ten counts on the presentment, four of “indecent act” and six of “incest”. However, the complainant’s evidence, if accepted, demonstrated an “on-going sexual liaison” throughout the period; thus providing evidence of what are commonly called “uncharged sexual acts”. The trial judge was, thus, required to give directions to the jury as to the use which they could make of that evidence, and the uses to which it could not be put. No objection has been taken to those directions.

The primary ground taken on this appeal was that this was a case in which a “Longman direction or warning”[1] should have been given by the judge to the jury to save a miscarriage of justice. Counsel for the appellant, in his carefully crafted submissions, contended that the directions of his Honour did not go far enough, in the context of this trial, to preserve its fairness. It was submitted that the delay between the commencement of the alleged offending in 1992 and the…

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 EO

Details

AGLC: R v EO [2004] VSCA 41
Case: [2004] VSCA 41
Decision Date: 2 April 2004

CaseChat Overview and Summary

In the matter of R v EO, the respondent was charged with multiple sexual offences against a child, which he denied. The case was heard by the Supreme Court of Victoria. The central issue before the court was whether the trial judge’s interventions, particularly in relation to the delay in the child's complaint, were significant enough to cause a miscarriage of justice. Additionally, the court had to determine whether the judge's directions to the jury were adequate in light of this delay and whether the imposed non-parole period was excessive.

The court examined the trial judge's interventions and found that they were necessary to ensure the fairness of the trial, particularly given the delay in the child's complaint. The judge's directions to the jury were deemed adequate as they appropriately addressed the potential impact of the delay on the child's credibility. The court held that the trial judge had managed the complexities of the case effectively, and there was no miscarriage of justice. Regarding the sentence, the court considered the severity of the offences and concluded that the non-parole period was not excessive.

The Supreme Court of Victoria upheld the conviction and sentence, affirming the trial judge's handling of the case. The court found no grounds to interfere with the jury's verdict or the sentence imposed, emphasising the importance of ensuring justice is served in cases involving sexual offences against children. The decision was made in the context of the need to balance the rights of the accused with the protection of the victim.

Orders