R v JMV - [2001] VSCA 219

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 190 of 2001

THE QUEEN

"J.M.V."

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JUDGES:	WINNEKE, P., BROOKING and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 December 2001
DATE OF JUDGMENT:	3 December 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 219

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Criminal law - "Old" sexual assaults - Verdict "unsafe" - Applicant convicted (by majority) on one of 29 counts of sexual offences against two daughters - Count upon which conviction recorded occurring 30 years before trial - Verdict quashed on grounds that it was "unsafe".
Judge's report to Court - Concern that "miscarriage of justice had occurred" - Court's attitude to judge's report discussed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr S.W. Kaye, Q.C. and Mr D.F. Cosgriff	Victoria Legal Aid

WINNEKE, P.:

This is an application by “JMV” for leave to appeal against his conviction on one of a large number of counts of what might be termed "old" sexual assaults against two of his daughters. The presentment contained 29 counts of such assaults by the applicant upon the two daughters (whom I shall refer to as "M" and "J"). The applicant, who is now 71 years of age and in poor health, lived for most of his married life with his wife and seven children at their matrimonial home. The applicant has no prior convictions and is a man of otherwise good character.

The two complainants were, respectively, the eldest and the youngest daughters in the family. At the time of trial they were aged 44 years and 30 years. Each said that over a period of their lives when they were between the ages of approximately 12 and 18, the applicant had on a number of occasions indecently assaulted them and introduced his penis into their anus or vagina in various bedrooms of the matrimonial home. The judge permitted all the counts to go before the jury in their unsevered form, no doubt in compliance with s.372(3AA) and (3AB) of the Crimes Act 1958. (See R. v. K.R.A.[1]) As I have said, the offences were "old" in the sense that those alleged to have been committed upon "M" occurred between 24 and 30 years prior to trial and those alleged to have been committed upon "J" between 12 and 18 years prior to trial. The judge warned the jury to act with caution before acting upon the evidence of either complainant, and, as it would seem to me, he had good reasons for doing so: firstly, the very age of the offences themselves; secondly, the lack of any recent complaint; thirdly, the fact that each complainant claimed to have recovered what might be described as a "suppressed" memory of the allegations at or about the same time, namely, September 1999, and in circumstances suggesting innocent infection, namely, after speaking with one another at a time when the applicant and his wife were in the course 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 JMV

Details

AGLC: R v JMV [2001] VSCA 219
Case: [2001] VSCA 219
Decision Date: 3 December 2001

CaseChat Overview and Summary

In the case of R v JMV, the applicant was convicted by a majority verdict on one of 29 counts of sexual offences against his two daughters. The offences spanned a period of over a decade, with the count on which the conviction was recorded occurring approximately 30 years prior to the trial. The High Court was tasked with reviewing the conviction on the grounds that the verdict was "unsafe and unsatisfactory." The applicant sought the quashing of his conviction, and the Court of Criminal Appeal referred the matter to the High Court, highlighting concerns that a miscarriage of justice may have occurred.

The primary legal issue before the court was whether the verdict was indeed "unsafe and unsatisfactory" to the extent that it should be quashed. The court examined the weight of the evidence, the reliability of the testimonies, and the potential for prejudice or unfairness in the trial process. Additionally, the court considered the role and weight of the trial judge's report, which expressed concern that a miscarriage of justice had occurred. The court's analysis included a review of the trial judge's assessment of the evidence and the reasons for his concerns about the fairness of the verdict.

The High Court found that the trial judge's concerns were well-founded and that the verdict was indeed "unsafe and unsatisfactory." The court noted the significant time lapse between the alleged offence and the trial, the absence of corroborative evidence, and the potential for prejudice and unreliability in the testimonies. The court concluded that these factors cumulatively undermined the reliability of the verdict. Consequently, the court quashed the conviction on the basis that it was unsafe and unsatisfactory. The decision underscores the importance of ensuring the reliability and fairness of verdicts in criminal trials, particularly in cases involving historical allegations of sexual offences.

Orders