R v H G - [2007] VSCA 55

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 232 of 2006

THE QUEEN
	v
HG

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JUDGES:	MAXWELL P, EAMES and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 March 2007
DATE OF ORDERS:	20 March 2007
DATE OF JUDGMENT:	2 April 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 55	1^st Revision, 3 April 2007

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CRIMINAL LAW – Appeal – Conviction – Incest, indecent act with child under 16 – Admissibility of evidence – Evidence of uncharged acts to be given by non-complainants – Evidence of complaint – Whether admissible as recent complaint evidence – Defence counsel prevented from arguing valid objections to admissibility – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Valos Black & Associates

MAXWELL P:
EAMES JA:
ASHLEY JA:

On 15 June 2006, a County Court jury found the applicant guilty on four counts of incest and five counts of committing an indecent act with a child under 16. All but one of those counts related to his stepdaughter (“A”). One of the indecent act counts related to a different girl (“B”). The applicant was acquitted of three further counts of committing an indecent act, all relating to a third girl (“C”).

On 14 July 2006, the applicant was sentenced to five years’ imprisonment on each of three of the counts of incest, and two years and six months’ imprisonment on the fourth. On the indecent act counts, he was sentenced to terms of imprisonment ranging from four months to 18 months. With cumulation, the total effective sentence was 12 years’ imprisonment. The Judge ordered that he serve a minimum of nine years before being eligible for parole.

The applicant sought leave to appeal against both conviction and sentence. In written submissions dated 14 March 2007, the Crown conceded that the applicant should be granted leave to appeal against his convictions, the convictions should be quashed, and a re-trial directed. That concession was, in our opinion, correctly made.

On 20 March 2007, the Court granted the applicant leave to appeal against conviction, allowed the appeal, quashed his convictions and directed that there be a retrial. These are our reasons for making those orders.

Defence objections not entertained

The trial at which the applicant was convicted was his fourth trial on these charges. The first trial began on 11 November 2005, but was aborted on 21 November after a copy of a statement by B was unintentionally handed to the jury by the Judge’s associate. The defence application for discharge of the jury was not opposed by the Crown.

The second trial commenced on 22 November 2005, before the same judge. Prosecuting and defence counsel were unchanged. On 6 December 2005, the jury were discharged without verdict, having been unable to agree.

The third trial commenced on 22 May 2006, before the same judge and with the same counsel. On 23 May, a jury was empanelled…

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 H G

Details

AGLC: R v H G [2007] VSCA 55
Case: [2007] VSCA 55
Decision Date: 2 April 2007

CaseChat Overview and Summary

The appeal in R v H G concerned the conviction of the appellant, H G, for incest and indecent acts with a child under the age of 16. The case was heard in the appellate court, which was tasked with reviewing the decision made by the lower court. The appellant contested the admissibility of certain evidence presented during the trial, which was central to the case against him. The primary legal issues revolved around whether evidence of uncharged acts provided by non-complainant witnesses was admissible, as well as whether evidence of a complaint made by the complainant should be considered as recent complaint evidence.

The court examined the principles governing the admissibility of evidence of uncharged acts and recent complaint evidence. It was noted that the trial judge had not allowed the defence counsel to fully argue against the admissibility of the contested evidence, which the court deemed a significant error. The court held that the exclusion of evidence of uncharged acts should be considered if it had no probative value and would unfairly prejudice the defendant. Additionally, the court found that the evidence of the complaint was improperly admitted as recent complaint evidence, as it was not shown to be closely connected in time to the alleged offence.

Consequently, the appellate court concluded that the errors in the admission of evidence were substantial enough to affect the outcome of the trial. The court allowed the appeal, quashed the conviction, and ordered a retrial. The decision emphasised the importance of allowing the defence to fully present its case, particularly in instances where the admissibility of evidence is in question. The court also underscored the necessity for careful consideration when admitting evidence of uncharged acts and recent complaints to ensure that the defendant's rights are not prejudiced.

Orders