R v LRG - [2006] VSCA 288

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 384 of 2005

THE QUEEN
	v.
LRG

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JUDGES:	CALLAWAY, VINCENT and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 November 2006
DATE OF JUDGMENT:	18 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 288

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Criminal law – Sexual offences against children – Two complainants – One complainant not asked to attest to truthfulness of VATE tapes – No objection taken at trial – Whether miscarriage of justice – Form in which complainants should have been asked to attest to truthfulness of tapes – Whether sufficient warning given to jury about difficulties that delay causes for an accused person – Whether separate consideration direction included sufficient warning against propensity reasoning –Aggregate of errors or irregularities – Whether miscarriage of justice - Observations (by Callaway, J.A.) on uncharged acts – Crimes Act 1958, ss.398A, 568(1) – Evidence Act 1958, s.37B.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston, S.C.	Ms A. Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr C.B. Boyce	Victoria Legal Aid

CALLAWAY, J.A.:

Introduction

The applicant, who is now aged 40, was presented in the County Court on six counts of taking part in an act of sexual penetration with a child under 16 (counts 3, 4, 14, 16, 17 and 19) and 14 counts of wilfully committing an indecent act with or in the presence of a child under 16 (counts 1, 2, 5 to 13, 15, 18 and 20). At the conclusion of the Crown case, the learned trial judge ruled that there was no case to answer on counts 15 and 16 and the jury acquitted the applicant on those counts by direction. At the conclusion of the trial, the applicant was also found not guilty on counts 1, 4, 10, 11, 12, 13, 17, 18 and 19.

There were two complainants, whom I shall call “K” and “T”. Of the nine counts on which the applicant was found guilty, six (counts 2, 3, 5, 6, 8 and 20) related to K and the remainder (counts 7, 9 and 14) related to T. On 14^th December 2005 the applicant was sentenced to terms of imprisonment ranging from two months to four years. Directions for cumulation and concurrency resulted in a total effective sentence of five years’ and nine months’ imprisonment. A non-parole period of two years and ten months was fixed and a declaration made regarding 23 days’ presentence detention.

The applicant seeks leave to appeal against conviction only.

There were ten grounds of appeal in the amended full statement filed pursuant to Rule 2.09 of the Supreme Court (Criminal Procedure) Rules 1998. Some of those grounds were not argued. The remaining grounds read:

“1.The learned trial judge erred by failing to sever the presentment.

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3.The verdicts of guilty should be set aside on the ground that they are unreasonable or cannot be supported having regard to the evidence.

PARTICULARS
(a) The verdicts of guilty are unsafe and unsatisfactory; and,
(b)The…

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 LRG

Details

AGLC: R v LRG [2006] VSCA 288
Case: [2006] VSCA 288
Decision Date: 18 December 2006

CaseChat Overview and Summary

In the case of R v LRG, the defendant appealed against his conviction for multiple sexual offences against two children. The appeal was heard in the Court of Appeal. The central issue was whether the trial judge’s handling of the video-assisted testimony (VATE) of one of the complainants, coupled with other alleged procedural errors, amounted to a miscarriage of justice.

The court examined whether the trial judge should have asked the uninvolved complainant to attest to the truthfulness of the VATE tapes, and if the failure to do so constituted a miscarriage of justice. It also considered whether the jury was sufficiently warned about the difficulties caused by the delay between the alleged offences and the trial, and whether the direction given to the jury against propensity reasoning was adequate. The court further assessed if the aggregate of errors or irregularities resulted in a miscarriage of justice. Additionally, observations made by one of the judges about uncharged acts were examined for their impact on the trial’s fairness.

The Court of Appeal held that while there were procedural errors, they did not amount to a miscarriage of justice. The court found that the trial judge’s failure to ask the uninvolved complainant to attest to the truthfulness of the tapes did not affect the trial's fairness given the absence of any objection at the trial. The jury was adequately warned about the difficulties caused by the delay, and the direction given was sufficient to guard against propensity reasoning. The cumulative effect of the errors did not prejudice the defendant’s right to a fair trial. Consequently, the appeal was dismissed.

Orders