R v M N G - [2002] VSCA 7

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No.316 of 2000

THE QUEEN

M.N.G.

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JUDGES:	PHILLIPS, BATT and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 December 2001
DATE OF JUDGMENT:	15 February, 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 7

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Criminal law - Sexual offending against juvenile alleged - Similar offending against complainant's sister also alleged - Separate trials ordered - Whether evidence of sister admissible on trial for offences against complainant - Use of V.A.T.E procedure followed by cross examination of witnesses - Whether accused denied fair trial when evidence of alibi and the like was not called by his counsel - Whether trial significantly mismanaged by defence counsel - Miscarriage of justice not demonstrated - Leave to appeal refused - Crimes Act 1958, ss.372, 398A, 568(1), Evidence Act 1958 s.37B.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. P.F. Tehan, Q.C.	Pryles and Defteros

PHILLIPS, J.A.:

This is an application for leave to appeal against conviction, the applicant having been convicted in the County Court on five counts of sexual offences against the daughter of a close friend. The victim, to whom I shall refer as “the complainant”, was born on 9 July 1985 so that at the time of the alleged offending she was 12 years of age.

The proceeding

The five counts on which the applicant was tried were part of a larger presentment alleging also offences by the applicant against the complainant's sister (whom I shall call “R”). R is about a year older than the complainant. Application was made, successfully, for the severance of the presentment and it was ordered that the three counts involving R should be tried separately. The trial on those counts was adjourned generally and the applicant was tried on the five remaining counts, counts 2, 3, 4, 7 and 8.

Counts 2, 3, 7 and 8 charged the applicant with committing an indecent act with a child under 16 and count 4, with his taking part in an act of sexual penetration with a child aged between 10 and 16 (the penetration being the introduction of the tongue into the vagina). Count 2 was pleaded as occurring between 1 December and 31 December 1997, but at trial the date 31 December 1997 was amended to 28 February 1998. (This was the result of evidence given by the complainant in the course of cross-examination: having earlier declared in her evidence-in-chief that the offence was committed in December 1997, in cross-examination she said that it occurred at the start of 1998. The amendment was not opposed by counsel for the applicant.) Counts 3 and 4 were pleaded as occurring on 6 June 1998, although this too was amended in circumstances to which I shall have to refer in more detail later: it was amended to “on or about 6 June 1998”. Counts 7 and 8 were pleaded as occurring on 11 June…

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 M N G

Details

AGLC: R v M N G [2002] VSCA 7
Case: [2002] VSCA 7
Decision Date: 15 February 2002

CaseChat Overview and Summary

In the case of R v M N G, the defendant was charged with sexual offences against a juvenile complainant. The prosecution also alleged similar offences against the complainant's sister. The case was heard in the Court of Appeal, which was tasked with determining whether the trial of the defendant for the offences against the complainant was significantly mismanaged or unfair due to the handling of evidence and the conduct of the defence counsel.

The primary legal issues that the court had to address were the admissibility of evidence relating to the sister's allegations in the trial for offences against the complainant, and whether the defendant's right to a fair trial was compromised by the defence counsel's failure to call certain evidence. The court also examined whether the trial was mismanaged by the defence counsel to the extent that it constituted a miscarriage of justice.

The court found that the use of the Victims of Sexual Offences: Evidence in Chief (V.A.T.E) procedure, followed by cross-examination, was appropriate and did not render the trial unfair. The court also determined that the failure of the defence counsel to call certain evidence, including alibi and similar fact evidence, did not deprive the defendant of a fair trial. Additionally, the court concluded that the trial was not significantly mismanaged by the defence counsel, and therefore, no miscarriage of justice had occurred. As a result, the appeal was dismissed, and leave to appeal was refused.

The court's decision affirmed the trial's integrity and upheld the conviction of the defendant, as per the relevant sections of the Crimes Act 1958 and the Evidence Act 1958. The appeal was dismissed, and the original conviction stood.

Orders