R v Giles - [2000] VSCA 121

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 266 of 1999

THE QUEEN

MICHAEL PETER GILES

---

JUDGES:	WINNEKE, P., BROOKING and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 June 2000
DATE OF JUDGMENT:	7 June 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 121

---

Criminal law – Applicant charged with two counts of indecent assault and six counts of common assault on young woman – Jury acquitting on the two counts of indecent assault and on three of the counts of common assault – Convictions not unsafe and unsatisfactory – Judge not erring in giving the jury a Browne v. Dunn direction.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. N. Crafti	Robertson Ramsay & Waites

WINNEKE, P.:

I will invite Chernov, J.A. to give the first judgment in this application.

CHERNOV, J.A.:

On 26 August 1999 the applicant pleaded not guilty to a presentment filed in the County Court at Melbourne which alleged that he had committed the following offences in relation to a young woman ("the complainant").

(a) Two counts of indecent assault (counts 1 and 3).

(b) Six counts of common assault (counts 2,4-8).

Following a trial lasting some nine days, the jury returned verdicts of not guilty in respect of counts 1, 2, 3 and 5 and guilty on counts 4 and 6, 7 and 8. After hearing a plea in mitigation of sentence, the judge sentenced the applicant to six months' imprisonment on each of the relevant counts and suspended the effective sentence of six months for a period of 18 months.

Having regard to the grounds of appeal to which I will refer later, it is necessary to summarise the relevant circumstances in which the alleged offences took place. At all relevant times the applicant was a practising psychiatrist. The complainant had been referred to him for treatment for anorexia nervosa in April 1985 when she was 20 years of age and the applicant was aged 44. Almost from the outset, their relationship involved some physical and intimate contact between them, which was usually instigated by the applicant. This included the following acts by him: rubbing the complainant's legs and arms while she sat on his knee during therapy sessions; telling the complainant that she made him feel "randy"; kissing the complainant on the lips; undressing the complainant to her underpants and t-shirt at his home and removing the complainant's top and pulling her close to him. With time, this relationship developed to a point where consensual sexual intercourse took place between them. It is common ground that, thereafter, they were in a consensual, albeit intermittent, sexual relationship for the remainder of their association. The disagreement between them, however, was as to when sexual intercourse first occurred. The complainant asserted that it was shortly after she turned 21, which was in March 1986, whereas the applicant maintained that it did not start until after he ceased…

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 Giles

Details

AGLC: R v Giles [2000] VSCA 121
Case: [2000] VSCA 121
Decision Date: 7 June 2000

CaseChat Overview and Summary

The case of R v Giles involved the applicant who was charged with two counts of indecent assault and six counts of common assault on a young woman. The case was heard in the relevant Australian court where the jury acquitted the applicant on the two counts of indecent assault and on three of the counts of common assault. However, the applicant was found guilty on the remaining three counts of common assault. The applicant sought to appeal against the convictions, arguing that they were not safe and satisfactory, and that the judge had erred in giving the jury a direction in accordance with Browne v. Dunn.

The primary legal issues the court was required to decide were whether the convictions were unsafe and unsatisfactory and whether the judge had erred in providing the jury with the Browne v. Dunn direction. The applicant argued that the evidence presented was insufficient to support the convictions, and that the jury should not have been given the direction as it was not applicable to the facts of the case. The applicant further contended that the judge's direction had the potential to mislead the jury, thereby affecting the outcome of the trial.

The court considered the arguments presented and concluded that the convictions were safe and satisfactory. The court found that there was sufficient evidence to support the guilty verdicts on the three counts of common assault, and that the jury had not been misled by the judge's direction. The court held that the judge had not erred in providing the jury with the direction, as it was appropriate in the circumstances of the case. The court found that the jury had been properly guided in their deliberations, and that the verdicts were not the result of any error on the part of the judge.

In light of the findings, the court dismissed the appeal and upheld the convictions on the three counts of common assault. The acquittals on the two counts of indecent assault and on three counts of common assault were also maintained. The court's decision in this case reinforces the importance of ensuring that convictions are safe and satisfactory, and that the jury is properly instructed in criminal trials.

Orders