R v GVV - [2008] VSCA 170

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 189 of 2007

THE QUEEN
	v
G V V

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JUDGES:	MAXWELL P, ASHLEY JA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 May 2008
DATE OF ORDERS:	8 May 2008
DATE OF REASONS FOR JUDGMENT:	11 September 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 170	Revised 23 September 2009

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CRIMINAL LAW — Appeal — Conviction — Sexual offences — Propensity warning — Uncharged acts — Edwards direction concerning consciousness of guilt of uncharged acts — Whether correct in principle — Longman warning — Whether warning diluted by reference to police loss of ability to investigate — Whether proviso applicable — Crimes Act 1958 (Vic) s 568(1) — Appeal allowed — Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr O P Holdenson QC with Mr M J Croucher	Galbally Rolfe

MAXWELL P:

The reasons for judgment of Lasry AJA comprehensively express the basis on which I joined in the orders made on 8 May 2008.

ASHLEY JA:

I have had the advantage of reading in draft the reasons for judgment of Lasry AJA. They express my own reasons for joining in the orders made on 8 May this year.

LASRY AJA:

This is an application by GVV for leave to appeal against conviction and sentence. On 8 May 2008, we heard the application and at the conclusion of submissions the Court announced that the application for leave to appeal against conviction was granted, the appeal would be allowed and made the following orders:

1. The application for leave to appeal against conviction is granted;
2.The appeal is treated as instituted and heard instanter and is allowed;
3.The convictions sustained by the applicant in the Court below are quashed and the sentence passed in respect of each count of which he was convicted are set aside;

4. The Court directs that there be a new trial;
5.The Court grants to the applicant an indemnity certificate pursuant to s 14 of the Appeal Costs Act (1998) and directs that there be included in the certificate any additional costs that the applicant will pay, or will be ordered to pay, as a consequence of the order for a new trial.

In announcing those orders, Maxwell P indicated that the reasons for that outcome would be published subsequently. These are my reasons for concurring in the making of those orders.

Introduction

The applicant was arraigned in the County Court on 29 May 2007, and pleaded not guilty to six counts of indecent act with a child under 16, one count of incest by a de facto parent, and one count of incest by a parent. On 1 June 2007, a jury found the applicant guilty on all counts except Count 8 (indecent act with a child under 16) where the jury delivered a verdict of not guilty.

On 8 June 2007, a plea in mitigation was…

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 GVV

Details

AGLC: R v GVV [2008] VSCA 170
Case: [2008] VSCA 170
Decision Date: 11 September 2008

CaseChat Overview and Summary

The case of R v GVV involved an appeal against a conviction for sexual offences. The defendant was convicted of multiple counts of sexual offences, and the appeal centred on the admissibility of evidence concerning uncharged acts. The appeal was heard in the Court of Appeal of Victoria.

The legal issues before the court were whether the trial judge correctly applied the principles concerning propensity warnings and Edwards directions regarding consciousness of guilt for uncharged acts. The appellant argued that the trial judge had incorrectly applied the principles, leading to an unfair prejudice against the defendant. The court was required to determine whether the trial judge’s propensity warning was correct in principle and whether the Longman warning was diluted by the trial judge’s reference to the police's inability to investigate.

The Court of Appeal found that the trial judge had erred in the application of the principles concerning propensity warnings and the Edwards direction. The court held that the trial judge’s warning concerning propensity was not sufficient to protect the defendant from unfair prejudice caused by evidence of uncharged acts. Furthermore, the reference to the police’s inability to investigate was deemed to have diluted the Longman warning, thereby impacting the fairness of the trial. Consequently, the court allowed the appeal and ordered a retrial.

Orders