JUDGES:	BUCHANAN, ASHLEY and WEINBERG JJA
WHERE HELD:	MILDURA
DATE OF HEARING:	6 May 2009
DATE OF JUDGMENT:	2 September 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 195
JUDGMENT APPEALED FROM:	R v Halliday (Unreported, Supreme Court, Justice Harper, 16 November 2007)

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CRIMINAL LAW – Applicant convicted of murder of estranged partner and sexual offences against her daughters at first trial – Convicted of sexual offences against own daughter following subsequent trial – During final stages of first trial, jury inadvertently provided with applicant’s prior convictions – Whether jury ought to have been discharged – R v Knape considered – Standard of proof in relation to uncharged acts following HML v The Queen discussed – Appeal upheld in relation to first trial – Retrial ordered in respect of charges of murder and sexual offences against step-daughters – Application dismissed in relation to second trial – Applicant to be re-sentenced on two remaining incest counts as separate non-parole period required to be fixed in light of successful appeal on other counts

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC and Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr P Tehan QC and Mr F Andrighetto	Cynthia A Toose & Associates

BUCHANAN, JA
ASHLEY, JA
WEINBERG, JA:

After a trial lasting 19 days, the applicant was convicted in the Supreme Court at Mildura of the murder of Shelley Stephenson, his one-time de facto spouse. He was also convicted, on the same presentment, of various offences of a sexual nature against her two young daughters, aged 10 and 11 respectively.

The applicant was subsequently convicted, in the Supreme Court at Melbourne, and before the same judge, on two counts of incest with his own natural-born daughter. He was sentenced ‘globally’, in respect of both trials, to life imprisonment. A non-parole period of 30 years was fixed.

THE MILDURA TRIAL

The sexual offence counts (counts 1, 2, 4, 5 and 6) were included in the same presentment as the count of murder (count 3) because they were said to provide both the explanation, and the motive, for the murder. The Crown case was that the applicant had planned for some months to kill the deceased in order that he could have unrestricted access to her daughters.

Ms Stephenson disappeared on 2 March 2006, and was never heard from again. Her body has never been found. By reason of the applicant’s relationship with the deceased, her two young daughters were relevantly to be regarded as his step-daughters. For that reason, counts 1 and 2, which alleged acts of sexual penetration, were characterised as counts of incest. The applicant was also charged with having maintained a sexual relationship with a child below the age of 16 (count 4) and with two counts of having engaged in an indecent act (counts 5 and 6).

The…

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 Halliday

Details

AGLC: R v Halliday [2009] VSCA 195
Case: [2009] VSCA 195
Decision Date: 2 September 2009

CaseChat Overview and Summary

The case of R v Halliday involves the appellant, who was convicted of the murder of his estranged partner and various sexual offences against her daughters at his first trial. Following this, he was convicted of further sexual offences against his own daughter in a subsequent trial. During the final stages of the first trial, the jury was inadvertently provided with the appellant's prior convictions. The appeal centred on whether the jury should have been discharged due to this error and whether the convictions were tainted by the prejudicial effect of the prior convictions.

The primary legal issue before the court was whether the jury's inadvertent exposure to the appellant's prior convictions during the first trial necessitated a discharge of the jury and if the convictions were valid. The court considered the case of R v Knape to determine the appropriate course of action when such an error occurs. Additionally, the court examined the standard of proof for uncharged acts, drawing on the principles set forth in HML v The Queen. The court had to decide whether the error was so significant that it compromised the fairness of the trial and if the convictions could stand despite the error.

The court concluded that the error was indeed significant enough to warrant a discharge of the jury, and therefore, the convictions obtained in the first trial were quashed. The court ordered a retrial for the charges of murder and sexual offences against the step-daughters. The court found that the error did not affect the validity of the convictions in the second trial, and thus, the appeal in relation to that trial was dismissed. The appellant was to be re-sentenced on the two remaining incest counts, as a separate non-parole period needed to be fixed in light of the successful appeal on the other counts.

Orders