R. v. Macfie - [2002] VSCA 51

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 16 of 2000

THE QUEEN
	v.
JOHN WILLIAM MACFIE

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JUDGES:	CALLAWAY, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 March 2002
DATE OF JUDGMENT:	17 April 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 51

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Criminal law – Sexual offences against multiple complainants – Separate consideration direction insufficient – Propensity warning also to be given – Directions concerning uncharged acts – Judge wrongly charging on consciousness of guilt when not relied on by Crown – New trial directed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G.J.C. Silbert	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr D.A. Dann	Yanoulatos Lawyers

CALLAWAY, J.A.:

I have had the advantage of reading in draft the reasons for judgment prepared by Buchanan, J.A. Subject to the observations that follow, I agree in them and in the disposition of the appeal that his Honour proposes.

The directions given at this trial with respect to uncharged acts fell well short of the requirements identified in R. v. Grech[1]. The important point is that they fell short as a matter of substance. As the judgment in that case expressly says, the summary at 614 was not intended as a model direction but as a guide to the substance of what was required. It may be that, in a different context, some of the language used by the judge would have been sufficient. [2]
[1][1997] 2 V.R. 609 at 614.
[2]Compare R. v. MCG [2001] VSCA 17 at [120].

In R. v. J (No. 2)[3], in a judgment in which Winneke, P. and Charles J.A. concurred[4], I said[5]:

“In New South Wales [the jury] are told not to reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged. In this State they are told that they must not reason that, because the accused engaged in particular conduct on one or more earlier occasions, he is the kind of person who is likely to have engaged in similar conduct on the occasion charged.” (Footnote omitted.)

[3][1998] 3 V.R. 602.

[4]At 614.

[5]At 641.

The reasons for the difference were explained in R. v. Grech by way of a gloss on the following passage in the judgment of Hunt, C.J. at C.L. in R. v. Beserick[6]:

"If the judge declines to exercise that discretion to exclude the evidence of such other sexual activity, an explanation should invariably be given to the jury - as soon as the first of that evidence is given and, if necessary, again in the summing-up - as to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of such other sexual activity for the specific activity which is the subject of the offence charged or reason that, because the accused may…

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. Macfie

Details

AGLC: R. v. Macfie [2002] VSCA 51
Case: [2002] VSCA 51
Decision Date: 17 April 2002

CaseChat Overview and Summary

The case of R. v. Macfie before the High Court involved the defendant, Macfie, who was charged with multiple sexual offences against several complainants. The nature of the dispute was the adequacy of the directions given by the trial judge to the jury, particularly regarding the handling of evidence about uncharged acts and the appropriate warnings concerning propensity evidence. The High Court was asked to review the trial judge's directions and determine whether they were sufficient to ensure a fair trial.

The primary legal issues before the court were whether the trial judge's direction on propensity evidence was adequate and whether the judge correctly instructed the jury on the use of evidence of uncharged acts. Additionally, the court needed to consider whether the trial judge erred in directing the jury on the concept of consciousness of guilt, a concept not relied upon by the Crown during the trial. The court's task was to examine these directions in light of established legal principles and determine if they were sufficient to uphold the fairness of the trial process.

The High Court found that the trial judge's direction on propensity evidence was insufficient as it did not adequately caution the jury against convicting based on propensity alone. The court held that a separate consideration direction was necessary but not sufficient; a propensity warning was also required. Furthermore, the court identified that the judge's direction on uncharged acts was inadequate because it did not sufficiently address the limited circumstances under which such evidence could be considered. The court also found that the trial judge incorrectly charged the jury on consciousness of guilt, a concept not advanced by the prosecution, thus introducing an irrelevant consideration that could have prejudiced the defendant. Given these errors, the High Court concluded that a new trial was necessary to ensure that Macfie received a fair trial.

In conclusion, the High Court quashed the conviction and ordered a new trial for Macfie. The court's decision emphasised the importance of precise and comprehensive jury directions in criminal trials, particularly when dealing with complex issues such as propensity evidence and uncharged acts. The errors identified in the trial judge's directions were deemed significant enough to warrant a new trial to ensure that Macfie was tried fairly and in accordance with the law.

Orders