CRIMINAL LAW - Sexual offences with children under 16 - Evidence of sexual misconduct with other girls - Failure to give appropriate directions - Questions and argument directed to complainant and witnesses' absence of motive to lie - Palmer v. R. (1998) 72 A.L.J.R. 254 - Claim that verdicts unsafe or unsatisfactory because jury appeared to accept witnesses on one count but not on others.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr J. D. McCardle
P. C. Wood, Solicitor for Public Prosecutions
For the Applicant
Mr M. J. Croucher
The Office of David Grace Q. C.
PHILLIPS, C.J.:
I have had the benefit of reading the judgment of Ormiston, J.A. in draft form. I concur in the conclusions His Honour has reached and I would subscribe to his reasons therefor.
ORMISTON, J.A.
A. GENERAL
This series of three applications for leave to appeal against conviction arises out of four trials designed to clear a 25-count presentment on which the applicant was charged with a number of sexual offences against girls aged between 11 and 15 years old. The division of the presentment into a number of trials was intended to prevent unnecessary prejudice likely to be caused by trying a substantial number of similar but not identical charges of offences against different girls, although at the last, the fourth trial, counts relating to three girls were heard together. The trials resulted in convictions on 12 counts (including one plea of guilty to count 1) and acquittals on eight counts, on all three counts (counts 23, 24 and 25) tried at the second trial and on counts 7, 8, 11, 16 and 18 tried at the fourth trial. The Crown entered a nolle prosequi in relation to the remaining five counts (counts 5, 6, 17, 21 and 22).
At the end of the day the applicant had been convicted on one count of indecent assault, one count of assault with intent to penetrate sexually a child between 10 and 16 years of age, three counts of committing an indecent act with a child under the age of 16, one count of committing an indecent act in the presence of a child under the age of 16 and six counts of taking part in an act of sexual penetration on a child between the age of 10 and 16 years. Having admitted a string of convictions, primarily for offences of dishonesty and only one for a sexual offence, at 15 or 16 previous court hearings, he was first sentenced for the eight counts, on which he was found guilty on the first and third trials, to several terms of imprisonment ranging from six…
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.
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Details
AGLC
R. v. Hilsley [1998] VSCA 143
Case
[1998] VSCA 143
Decision Date
CaseChat Overview and Summary
The case of R. v. Hilsley involved the respondent, Hilsley, who was charged with multiple offences including sexual assault and indecent assault involving children under the age of 16. The trial took place in the High Court of Australia, which was required to determine the validity of the jury's verdict and the appropriateness of the trial judge's directions to the jury. The central issue before the court was whether the trial judge erred in not directing the jury to consider the absence of any apparent motive on the part of the complainant and the other witnesses to lie about the sexual misconduct. This issue was pivotal as it pertained to the jury's ability to properly assess the credibility of the witnesses.
The court examined whether the trial judge's failure to give appropriate directions regarding the credibility of the witnesses constituted a miscarriage of justice. It was argued that the judge should have directed the jury to consider that the complainant and the witnesses had no apparent motive to lie, a point of law derived from the High Court's decision in Palmer v. R. Furthermore, the court scrutinised whether the jury's acceptance of the witnesses' testimonies on some counts but not on others rendered the verdicts unsafe or unsatisfactory. This scrutiny was necessary to ensure that the jury's decision-making process was not influenced by factors that could potentially undermine the fairness of the trial.
The High Court found that the trial judge did indeed err in not directing the jury on the lack of motive to lie, which could have influenced their assessment of the witnesses' credibility. However, the court concluded that this error did not lead to a miscarriage of justice. The jury's decision to convict on some counts and acquit on others was deemed to be a reasonable assessment of the evidence presented. The court held that the verdicts were safe and satisfactory despite the error in the directions given to the jury. Consequently, the appeal was dismissed, and the convictions were upheld.