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R v GAM (No 2)

R v GAM (No 2)

Case [2004] VSCA 117 2 July 2004

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 52 of 2002

THE QUEEN
	v.
G.A.M. (NO. 2)

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JUDGES:	WINNEKE, P., CALLAWAY and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 May 2004
DATE OF JUDGMENT:	2 July 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 117

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Criminal law – Practice and procedure – Power of Court of Appeal to entertain further application for leave to appeal against conviction after previous application has been refused on the merits – “Fresh evidence” suggesting that critical evidence given at trial unreliable – Whether s.574 of Crimes Act 1958 capable by itself of empowering Court of Appeal to “re-open” previous application.
Status of application for “leave to appeal” and “appeals” in context of Part VI of Crimes Act discussed. Crimes Act 1958 ss.567, 568, 574 and 584.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan, Q.C., D.P.P.	Ms. K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. N.J. Clelland, S.C. and Mr. K.T. Armstrong	Victoria Legal Aid

WINNEKE, P.:

In February 2002, a County Court jury, at Shepparton, convicted the applicant, G.A.M., of seven counts alleging the commission of sexual offences against his step-daughter (the complainant). Count 1 alleged an indecent act in the presence of a child; counts 2, 4, 5 and 7 alleged acts of incest; and counts 3 and 6 alleged acts of indecent assault. The offending was alleged to have occurred during a six month period between July 1999 and January 2000, at which time the complainant was 13 years of age. It was said to have taken place in the house at Seymour where the applicant lived with his wife, who was the mother of the complainant. The family comprised the applicant and his wife, the complainant and two other, younger, children of the marriage between the applicant and his wife. The evidence against the applicant was almost entirely confined to the evidence of the complainant, although there was evidence of a “recent complaint” made by the complainant to her grandmother (the applicant’s mother) and some evidence from a doctor to whom the complainant had been referred at the Royal Children’s Hospital, who said that she had examined the complainant on 14 January 2000 and had found, inter alia, two “superficial abrasions” on what she described as the “anal verge”. That evidence had some potential relevance to count 7 on the presentment which alleged incest in the form of anal penetration, but was also left to the jury in the alternative of “attempted incest”.

The trial judge sentenced the applicant to a total effective sentence of six years and nine months and fixed a non-parole period of five years.

G.A.M. applied to this Court for leave to appeal against his convictions and the sentences imposed. The Court heard the application in October 2003. In respect of the conviction application, the Court entertained six grounds of appeal which had, on 30 September 2003, been substituted for the original grounds by the Registrar. After hearing counsel for…

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 (No 2)

Details

AGLC: R v GAM (No 2) [2004] VSCA 117
Case: [2004] VSCA 117
Decision Date: 2 July 2004

CaseChat Overview and Summary

The parties involved in the case were the Crown, represented by the Director of Public Prosecutions, and the appellant, GAM. The dispute pertained to the appellant's conviction and whether the Court of Appeal could consider a further application for leave to appeal, following a previous refusal based on the merits. The matter was heard by the Court of Appeal, which had to determine whether the new evidence presented by the appellant was sufficient to warrant reconsideration of the earlier decision.

The legal issues before the court centred on the power of the Court of Appeal to entertain a second application for leave to appeal against a conviction, subsequent to a previous application that had been refused on its merits. The crux of the matter was whether the existence of "fresh evidence" suggesting that critical evidence given at trial was unreliable could empower the Court of Appeal to "re-open" the previous application. The court was required to interpret sections 574, 567, 568, and 584 of the Crimes Act 1958, particularly in relation to the status of applications for "leave to appeal" and "appeals" within Part VI of the Act.

The Court of Appeal considered the statutory provisions and concluded that section 574 of the Crimes Act 1958, by itself, did not empower the Court to re-open a previous application for leave to appeal on the basis of fresh evidence. The court held that the statutory scheme of the Act distinguished between applications for leave to appeal and the appeals themselves, and that the provisions did not allow for the reconsideration of a refused application solely based on new evidence. Consequently, the court dismissed the application for leave to appeal, affirming the earlier decision.

No further orders were made by the court.

Orders