R v GG - [2004] VSCA 238

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 323 of 2002

THE QUEEN
	v.
GG

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JUDGES:	WARREN, C.J., BATT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 June 2004
DATE OF JUDGMENT:	17 December 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 238

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CRIMINAL LAW – Sexual offences – Incest – Evidence – Two complainants – Whether statements to school friend by ten year old complainant capable of constituting recent complaint – Complainant 46 years old at time of trial – Witness to complaint unavailable at trial - Statements made two weeks after alleged offence – Whether complaint made at first reasonable opportunity – Admissibility of complaint evidence - Directions – Whether use of complaint evidence by jury subject to finding by them that complaint made at first reasonable opportunity - Uncharged act – Whether evidence of uncharged act ought to have been excluded – Relevance of evidence – Directions as to uncharged act.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Silbert	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr P. Morrissey	Victoria Legal Aid

WARREN, C.J.:

I agree with the reasons of Eames, J.A. that I have read in draft and that the application should be dismissed.

BATT, J.A.:

I have had the very considerable advantage of reading in draft the reasons for judgment of Eames, J.A. I agree with his Honour that the application should be dismissed for the reasons he gives.

EAMES, J.A.:

The applicant seeks leave to appeal against convictions on four counts of incest which followed verdicts of guilty returned by a jury in the County Court on 30 August 2002. Although notice of application for leave to appeal against sentence had also been filed, that application was abandoned, by leave, at the hearing. It is unnecessary, therefore, to set out the details of the individual sentences and it is sufficient to record that the learned sentencing judge imposed a total effective sentence of six years three months’ imprisonment and fixed a non-parole period of two years six months.

The offences were alleged to have been committed against the applicant’s two daughters whom I will call “M” and “E”. On this application for leave to appeal we are concerned only with offences committed against M. At his trial the jury had acquitted the applicant on two counts of indecent assault on a girl under the age of 16 years, the complainant being E. As I shall discuss, he was convicted of one count of common assault concerning E.

With respect to M, count 3 was an offence of incest said to have been committed between 12 August 1966 and 31 December 1966. Count 5 was a count of

incest against M said to have been committed between 26 December 1971 and 10 January 1972. Count 6 was an offence of incest against M said to have been committed between 2 January 1972 and 1 March 1972. Count 7 was an offence of incest against M committed between 1…

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 GG

Details

AGLC: R v GG [2004] VSCA 238
Case: [2004] VSCA 238
Decision Date: 17 December 2004

CaseChat Overview and Summary

The case of R v GG involved the respondent, who was charged with multiple counts of sexual assault against two complainants, one of whom was a ten-year-old at the time of the alleged offences, and the other a thirty-five-year-old woman. The case was heard in the Supreme Court of Victoria, where the respondent was ultimately acquitted of all charges. The primary legal issues that the court had to address were the admissibility of statements made by the ten-year-old complainant to a school friend two weeks after the alleged offences and the relevance of evidence of an uncharged act.

The court had to determine whether the statement made by the ten-year-old complainant to a school friend constituted a recent complaint, which could be admitted as evidence. The complainant was forty-six years old at the time of the trial, and the friend who received the complaint was not available to testify. The court considered whether the statement could be admitted as a recent complaint, given the complainant's age at the time of the offence and the delay in reporting. The court concluded that the statement could be admitted as a recent complaint, and it was for the jury to determine whether the complaint was made at the first reasonable opportunity.

Furthermore, the court had to consider whether evidence of an uncharged act should have been excluded. The respondent argued that the evidence was irrelevant and prejudicial, but the prosecution contended that it was relevant to the respondent's state of mind and intent. The court found that the evidence was relevant and could be admitted, but it had to be subject to appropriate directions to the jury regarding its use. The court provided directions to the jury that they could only consider the evidence of the uncharged act if they were satisfied that the complaint was made at the first reasonable opportunity.

In conclusion, the court found that the evidence of the recent complaint and the uncharged act was admissible, subject to the jury being directed that they could only consider the evidence if they were satisfied that the complaint was made at the first reasonable opportunity. The respondent was acquitted of all charges, and the appeal against conviction was dismissed. The court did not make any orders as the appeal was dismissed.

Orders