R v Huver

[2005] VSCA 170

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 362 of 2003

THE QUEEN

v.

PAUL PETER HUVER

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JUDGES:	VINCENT, EAMES AND NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 June 2005
DATE OF ORDER	20 June 2005
DATE OF JUDGMENT:	25 July 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 170

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Criminal Law – Conviction – Indecent act with a child under 16 (4 counts) – Threat to kill (3 counts) – Actual conduct encompassed by separate counts not identified by trial judge nor adequate instructions given with respect to identification and proper use to which evidence of other alleged uncharged acts could be put – Bases of various verdicts uncertain – Miscarriage of justice – Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr A.D. Halse	Paul A. Vale Pty.

VINCENT, J.A.
EAMES, J.A.
NETTLE, J.A.:

1. As already announced, the Court granted this application for leave to appeal against conviction, on 20 June 2005, allowed the appeal, set aside the convictions entered in the court below and directed that a re-trial be held.  The following are the circumstances which led to the making of those orders.

1. The appellant was presented in the County Court on four counts of the commission of an indecent act with a child and three counts of the making of threats to kill.

1. There is no need to set out in any detail the allegations made against the appellant or the evidence adduced in the trial to support them.  For present purposes, it is sufficient to state that the charges arose out of two separate incidents involving genital touching by and of the 7-8 year old niece of the appellant that were said to have occurred between 1 September 2000 and 1 November 2001 (counts 1, 2, 5 and 7).  It was further alleged that he had made threats to kill the young girl if she disclosed what had happened (counts 3, 4 and 6).

1. The appellant contested the charges and a trial was conducted, in the course of which there was evidence adduced that he had engaged in other acts of a similar kind in respect of which no charges were laid.  At the conclusion of the hearing the jury returned verdicts of guilty on all counts.

1. He then lodged an application for leave to appeal against his convictions, relying upon a number of grounds to which no reference need be made in the circumstances, save to say that they relate to complaints concerning the admission of certain evidence, and aspects of the judge’s instructions to the jury.  All of these matters will need to be reconsidered in the circumstances existing at the time of the retrial.

1. At the commencement of the hearing before us, what was perceived by the members of the Court as likely to have constituted a very serious defect in the trial judge’s instructions to the jury was raised with Mr. McArdle who appeared for the Crown.  It was apparent upon perusal of the charge that, although there were references in the evidence to other incidents of a similar character to those involved in the counts before the court, the actual conduct encompassed by the separate counts was not identified by the trial judge nor was any adequate instruction given to the jury with respect to the identification and the proper use to which evidence of the other alleged and uncharged acts could be put.

1. It may well have been, as Mr. McArdle, who accepted that these deficiencies created a serious problem, suggested in discussion, that these matters could have been the subject of analysis in counsels’ addresses and therefore have provided the background against which the judge’s directions were given and understood by the jury. However those addresses have not been transcribed. 

1. In any event, assuming that the conduct upon which the prosecution relied in respect of the separate counts was clearly identified in argument, it is fundamental to the proper conduct of a criminal trial that the trial judge endeavour to ensure, by the provision of appropriate instructions, that the jury is under no misapprehension concerning what the prosecution has to establish in order to secure a conviction on any particular count before them.

1. Sometimes where, as a practical proposition, the issues are few and well identified, this task should present little difficulty.  On other occasions where, as here, there is a number of discrete allegations, some of which are not encompassed by the charges on which the individual has been presented, more may need to be done to avoid potential confusion developing in the minds of jurors.

1. Obviously the presence of evidence that the accused had engaged in other unlawful activity of a generally similar kind may not only increase the potential for such confusion but constitute a source of significant prejudice and tend to blur the situation with regard to the evidence to be taken into account by the jury – proof of the particular counts.

1. Here, the situation was not one in which the Court considered that the assumption could be safely made that the jury must have appreciated what was being asserted as constituting the criminal behaviour involved in the separate offences.  The bases of the various verdicts was quite uncertain and made more so by the absence of appropriate instructions with respect to the uncharged acts.  Accordingly, none of the convictions could be permitted to stand.

1. This unfortunate state of affairs almost certainly arose because the experienced judge became quite unwell towards the end of the trial and, in an endeavour to complete the hearing, truncated the charge given to the jury so that her instructions fell well short of what was required and to the point that the Court could not exclude the possibility of a miscarriage of justice.

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