R v JMA - [2007] VSCA 105

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 123 of 2006

THE QUEEN
	Respondent
v.
JMA	Applicant

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JUDGES:	MAXWELL P, BUCHANAN and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 May 2007
DATE OF JUDGMENT:	23 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 105

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Criminal law – Sexual offences against five year old child – Evidence of statements by victim to doctor admissible to explain doctor’s opinion – Beyond reasonable doubt – Trial judge not required to contrast criminal and civil burdens of proof in charge to jury – Verdicts not inconsistent – Verdicts not unsafe or unsatisfactory – Direction on mens rea sufficient – Accident not in issue at trial.

Sentence – Total effective sentence of seven years and nine months with a minimum term of five years and six months not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A. Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr I D Hill, QC	Gerard Lethbridge & Co

MAXWELL P:

I have had the advantage of reading in draft the reasons of Buchanan JA. I too would dismiss each application, for the reasons which his Honour gives.

BUCHANAN JA:

The applicant seeks leave to appeal against his conviction on two counts of sexual penetration of a child under the age of 16 years and one count of an indecent act with a child. He also seeks leave to appeal against the sentence imposed upon him.

The applicant is aged 59 years. He was aged 56 years when the offences were alleged to have occurred. The complainant was then aged between four and five years. The applicant and his wife were neighbours and close friends of the parents of the complainant. The complainant’s father frequently left her in the care of the applicant.

The offences were said to have come to light on Sunday 31 October 2004 when the complainant and her parents visited the applicant at his house. In his evidence at the trial, the complainant’s father said that the applicant took the complainant out to a shed at the rear of the house, in which he kept birds. The complainant’s father said he walked into the shed to find his daughter lying on a table. Her dress had been pulled up and her underpants down. The applicant was crouched beside her, his mouth close to her vagina. The complainant’s father gave evidence that he asked the applicant what he was doing. The applicant replied, “Oh, I am doing nothing wrong.” The applicant said the father should ask his daughter. When he did so, the complainant said, “He was touching my puppet”, a term which her mother taught her to use to refer to her vagina.

The complainant, her father and the applicant went into the kitchen and joined the wife of the applicant and the mother of the complainant. The complainant’s father said that the applicant told his wife, “Look, this has got to come out, might as well…

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 JMA

Details

AGLC: R v JMA [2007] VSCA 105
Case: [2007] VSCA 105
Decision Date: 23 May 2007

CaseChat Overview and Summary

In the case of R v JMA, the appellant was convicted of various sexual offences against a five-year-old child. The trial took place in the Supreme Court of Victoria, and the appeal was heard by the Court of Appeal. The appellant contested the admissibility of certain statements made by the victim to a doctor, the sufficiency of the trial judge's directions to the jury, and the length of the sentence imposed. The case hinged on the interpretation of the law regarding the admissibility of statements made by a child victim to a medical professional and the adequacy of the trial judge's instructions to the jury on the concept of mens rea.

The primary legal issues addressed by the court involved the admissibility of the doctor's testimony based on statements made by the victim, the appropriateness of the trial judge's instructions to the jury, and the proportionality of the sentence imposed. The court had to determine whether the doctor's opinion was admissible to explain the victim's statements and whether the trial judge adequately instructed the jury on the necessary mental state for the crimes. Furthermore, the court assessed the severity of the sentence to ensure it was not manifestly excessive.

The court found that the doctor's testimony, which was based on statements made by the victim, was admissible to explain the doctor's opinion and did not infringe on the hearsay rule. The court held that the trial judge's direction on mens rea was sufficient and that the verdicts were neither inconsistent nor unsafe or unsatisfactory. The court also concluded that the trial judge was not required to contrast the criminal and civil burdens of proof in the charge to the jury. Lastly, the court determined that the total effective sentence of seven years and nine months, with a minimum term of five years and six months, was not manifestly excessive, considering the gravity of the offences and the need for deterrence and denunciation.

The appeal was dismissed, and the convictions and sentence were upheld. The court's decision affirmed the importance of ensuring the admissibility of critical evidence in sexual offence cases and the need for proper jury instructions. The ruling also reinforced the court's role in assessing the proportionality of sentences imposed in serious criminal cases.

Orders