R v HRA - [2008] VSCA 56

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 367 of 2006

THE QUEEN

HRA

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JUDGES:	NEAVE and KELLAM JJA and CURTAIN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 October 2007
DATE OF JUDGMENT:	11 April 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 56

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CRIMINAL LAW – Indecent acts with child under 16 years – Conviction – Prosecutor’s cross-examination of the applicant as to whether complainant had ‘fabricated’ evidence – Recent complaint, made by a child aged six years – Whether evidence of complaint admissible – Whether trial judge erred in directions as to recent complaint – VATE tape – Whether VATE tape should have been admitted into evidence – Whether jury verdicts unsafe.

CRIMINAL LAW – Indecent acts with child under 16 years – Sentencing – Whether judge in error in stating that verdicts did not represent ‘isolated act’ – Whether judge’s findings as to effect of offences on victim and others open – Whether judge’s statement that he could not ‘confidently find’ the applicant would not re-offend again open – Manifest excess.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms C Quin	Ms A Cannon Solicitor for Public Prosecutions
For the Applicant	Mr M Croucher	Galbally Rolfe

NEAVE JA:

For the reasons given by Kellam JA, I would also dismiss the applications for leave to appeal against conviction and sentence. I wish only to comment on two aspects of the third ground of the application for leave to appeal against conviction. As Kellam JA explains in his reasons, ground 3 relates to the admissibility of evidence of the conduct and statements made by the complainant to her mother on the evening of 28 December and the statements she made to her mother on the following day.

Counsel for the applicant submitted that these statements were inadmissible because they were not capable of amounting to complaints, but were ‘mere narrative’ and because the complainant did not make them at the first available opportunity after the alleged sexual assaults had occurred. Counsel relied on the decision of this Court in R v Knigge,[1] in support of that submission.
[1](2003) 6 VR 181.

In R v Knigge the complainant had made a number of statements to her teacher about six months after the end of the ‘between dates’ period during which the offences were said to have occurred. The complainant told her teacher that the applicant ran around the house wearing only a towel and that the children ‘had to try and grab the towel and pull it off him’. She also said that the applicant came into the bathroom when she and her sister were in the bath, and that he liked to put his hand on her leg.

Winneke P doubted whether this was evidence of a complaint at all, commenting that it seemed to have:

been in the nature of general discourse between the complainant and the witness about events of day to day activities (by no means approaching the conduct complained of…

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 HRA

Details

AGLC: R v HRA [2008] VSCA 56
Case: [2008] VSCA 56
Decision Date: 11 April 2008

CaseChat Overview and Summary

In the matter of R v HRA, the case was heard by the court of criminal appeal. The applicant was convicted of indecent acts with a child under 16 years of age. The primary issues revolved around the admissibility of the complainant's recent complaint and whether the trial judge provided correct directions to the jury regarding this evidence. Additionally, the case examined the admissibility of a videotaped evidence in trial (VATE tape) and the safety of the jury's verdicts.

The legal issues before the court included whether the trial judge correctly directed the jury regarding the admissibility of the recent complaint made by a child aged six years. It was also necessary to determine whether the judge erred in his directions concerning the impact of the offences on the victim and others, as well as his findings on the likelihood of re-offending. Furthermore, the court considered whether the judge's statement about not being able to confidently find that the applicant would not re-offend again constituted a manifest excess.

The court found that while the trial judge's directions to the jury regarding the recent complaint were not perfect, they did not result in a miscarriage of justice. The court also held that the judge's findings and comments, while not ideal, did not reach the level of a manifest excess. Consequently, the court determined that the jury's verdicts were safe and affirmed the applicant's conviction and sentence.

No further orders were made by the court beyond affirming the conviction and sentence.

Orders