R v Macfie
[2001] VSCA 189
•24 October 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.16 of 2000
| THE QUEEN |
| v. |
| JOHN WILLIAM MACFIE |
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JUDGES: | PHILLIPS, CALLAWAY and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 October 2001 | |
DATE OF JUDGMENT: | 24 October 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 189 | |
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Criminal law – Leave to appeal – Sexual offences – Several complainants – Uncharged acts – Lack of warning against propensity reasoning – Sentence – Imposition of a sentence longer than that appropriate to gravity of offence pursuant to s.6D(b) of the Sentencing Act 1991 – Whether appropriate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr W. Morgan-Payler Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | In person |
PHILLIPS, J.A.:
I will ask Buchanan, J.A. to deliver the judgment of the Court.
BUCHANAN, J.A.:
On 16 August 1999 the applicant was arraigned and pleaded not guilty in the County Court at Warrnambool to a presentment containing 21 counts alleging sexual offences against four girls. There were four counts of rape; 11 counts of indecent act with a child under 16 years of age; five counts of sexual penetration with a child aged between 10 and 16 years, and one count of indecent act in the presence of a child under 16 years of age.
The offences were alleged to have been committed at a farm of the family of one of the complainants between 5 April 1996 and 15 June 1996. The girl, who was 15 years of age, met the applicant while he was employed at a carnival in Portland. Later her parents invited him to stay at their property. The applicant slept in the caravan behind the house. The other complainants, who were aged 12, 14 and 15 years, were friends of the girl who lived at the farm.
At the conclusion of the trial the applicant was found guilty of two counts of rape; nine counts of indecent act with a child under 16 years of age; two counts of sexual penetration with a child between 10 and 16 years of age, and one alternative count of attempted sexual penetration of a child between 10 and 16 years of age. The applicant was acquitted on the remaining counts.
On 28 January 2000 the applicant was sentenced to a term of five years' imprisonment on one of the counts of rape and to a term of four years' imprisonment on the other count of rape. He was sentenced to a term of 12 months' imprisonment on each of the counts of indecent assault, to a term of 15 months' imprisonment on the count of attempted sexual penetration and to a term of two years' imprisonment on the count of sexual penetration. A measure of cumulation produced a total effective sentence of eight years' imprisonment.
On 29 October 1999 the applicant had been sentenced after another unrelated trial to a total effective term of eight years' imprisonment with a non-parole period of six years’ imprisonment in respect of one count of maintaining a sexual relationship with a child under 16 years of age and one count of abduction of a child under 16 years of age. The judge who sentenced the applicant on 28 June 2000 ordered that five years of the total effective sentence which he imposed were to be served concurrently with the sentence the applicant was then undergoing and fixed a new non-parole period of eight years' imprisonment to commence on the date on which the earlier sentence was imposed. The applicant now seeks leave to appeal against both conviction and sentence.
The only ground of the application for leave to appeal against conviction is that the verdicts were unsafe and unsatisfactory. Although the application was drawn by a solicitor, the applicant appeared before us unrepresented.
The Crown case at trial consisted of evidence of the four complainants and the mothers of two of the complainants; two friends of the complainants; doctors who examined two of the complainants; and a policeman who interviewed the applicant. The applicant denied any wrongdoing in his interview. The applicant neither gave evidence himself nor called any evidence.
Although the applicant did not complain about the charge, we have been troubled by the directions given by the trial judge as to the use the jury could make of evidence of findings as to other counts and uncharged acts when considering particular counts. His Honour gave a direction as to the jury's duty to separately consider each count and determine it on the evidence led in respect of that count, and continued:
"And the process is not, must not, and cannot be because he is guilty or not guilty as the case may be of one, therefore, he must be guilty or not guilty of the next, or to one after or all the others."
A like direction was given as to the approach the jury should take to uncharged acts. His Honour did not tell the jury that they were not to reason that if the applicant engaged in the conduct the subject matter of a count or uncharged act, he was the kind of person who was likely to commit the offences with which he was charged.
We think it is at least arguable that the jury should have been warned not to reason that because the applicant was shown to have committed offences against young girls, he was a paedophile who was more likely to have committed other like offences (see R. v. TJB[1]; R. v. J (No2)[2]; T v. R.[3]).
[1][1998] 4 V.R. 621 at 633-4.
[2][1998] 3 V.R. 602 at 638.
[3](1996) 86 A.Crim.R. 293 at 299.
In our opinion the point should be properly argued and determined. For that reason we propose to grant the applicant leave to appeal against conviction.
We will also give the applicant leave to appeal against sentence. It appears from the sentencing remarks that his Honour may well have imposed a sentence which he regarded as disproportionate because the applicant was to be sentenced as a serious sexual offender, and pursuant to s.6D(b) of the Sentencing Act 1991 he could be subject to a sentence longer than that which was proportionate to the gravity of the offence considered in the light of the objective circumstances. It is arguable that such an approach was not open to his Honour in the circumstances of this case.
Accordingly, we will grant leave to appeal against conviction and sentence in the expectation that the applicant will be granted Legal Aid and will then be in a position to properly pursue the appeals. We emphasize that in giving leave to appeal we are expressing no view as to whether the appeal will succeed.
PHILLIPS, J.A.:
The Orders of Court are as follows:
1.That the applicant have leave to appeal against conviction.
2.That the applicant have leave to appeal against sentence.
Anything further?
MR MORGAN-PAYLER:
Might I just enquire whether leave is granted simply in respect of the two matters raised in the discussion this morning?
PHILLIPS, J.A.:
I think not. The grounds have not yet been amended.
MR MORGAN-PAYLER:
If Your Honour pleases.
PHILLIPS, J.A.:
Leave is expressed without limitation.
MR MORGAN-PAYLER:
Generally?
PHILLIPS, J.A.:
Yes.
MR MORGAN-PAYLER:
Thank you, Your Honour.
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