R v GAM

Case [2003] VSCA 185 4 December 2003

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 52 of 2002

THE QUEEN
	v.
G.A.M.

---

JUDGES:	WINNEKE, P., PHILLIPS and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 October 2003
DATE OF JUDGMENT:	4 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 185

---

Criminal law – Conviction – Seven counts of sexually interfering with step-daughter – Whether judge erred in leaving “lies” to jury as evidence of consciousness of guilt, in directing jury concerning a motive in the complainant “to lie”, in failing to comply with his obligations under s.400(3) and (6) of the Crimes Act and in failing to give a “Longman warning” – No exception taken to judge’s charge to jury – Application dismissed.

Criminal law – Sentence – Order for cumulation offending the principle of totality – Total effective sentence of six years and nine months with non-parole period of five years reduced to five years and six months with non-parole period of three years and nine months.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle Q.C.	Ms. K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. G.J.C. Silbert	Victoria Legal Aid

WINNEKE, P.:

The applicant, G.A.M. (to whom I will refer as “the applicant”), stood for trial in the County Court at Shepparton in February 2002 on a presentment containing seven counts of sexually interfering with his step-daughter (to whom I will refer as “the complainant”). The offending alleged was said to have occurred during a six month period between 13 July 1999 and 5 January 2000 (at which time the complainant was 13 years old) in the house at Seymour where the applicant lived with his wife, the complainant and two other children of the marriage between the applicant and his wife.

In December 2001, the matter of the applicant’s trial had been called on, in Shepparton, before another County Court judge. Preliminary argument in respect of certain procedural matters had been made to the judge on that occasion with a view to obtaining her rulings. Those rulings were given, but the further trial was postponed until February of the following year. At the commencement of that trial, it was agreed between the parties that the rulings made by the judge in December 2001 should be adopted for the purposes of the trial. Those rulings were as follows:

(a)A refusal of an application made by, or on behalf of, the applicant’s mother pursuant to s.400 of the Crimes Act 1958 – namely that she be excused from giving evidence upon her son’s trial.
(b)An application to sever counts 6 and 7 on the presentment (offences alleged to have occurred upon 5 January 2000) from other counts on the presentment was refused.
(c)An application, in the event that severance was refused, to exclude evidence of “recent complaint” in respect of counts 6 and 7 was refused.
(d)An application to exclude evidence of “uncharged acts” was allowed.

As I have indicated, the trial of the applicant took place at Shepparton before…

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 GAM

Details

AGLC: R v GAM [2003] VSCA 185
Case: [2003] VSCA 185
Decision Date: 4 December 2003

CaseChat Overview and Summary

In the matter of the Crown versus GAM, the defendant appealed against his conviction and sentence. GAM had been convicted of seven counts of sexually interfering with his step-daughter. The appeal was against his conviction and sentence. The appeal centred on whether the trial judge had erred in leaving certain evidence to the jury, in directing the jury concerning a motive in the complainant to lie, and in failing to comply with certain statutory obligations and to give a "Longman warning".

The court considered whether the trial judge had erred in leaving to the jury the evidence of "lies" as evidence of consciousness of guilt. The court found that there was no error as the evidence of "lies" was relevant to the issue of consciousness of guilt. The court also considered whether the trial judge had erred in directing the jury concerning a motive in the complainant to lie. The court found that there was no error as the direction was a proper exercise of the trial judge's discretion. The court further considered whether the trial judge had failed to comply with his obligations under s.400(3) and (6) of the Crimes Act and in failing to give a "Longman warning". The court found that there was no error as the trial judge had properly exercised his discretion in the circumstances of the case.

The court then considered whether the sentence imposed was appropriate. The court found that the total effective sentence of six years and nine months with a non-parole period of five years was excessive and reduced the sentence to five years and six months with a non-parole period of three years and nine months. The court dismissed the appeal against conviction but allowed the appeal against sentence and varied the sentence accordingly.

Orders