R v Macfie - [2001] VSCA 189

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…

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 [2001] VSCA 189
Case: [2001] VSCA 189
Decision Date: 24 October 2001

CaseChat Overview and Summary

The case of R v Macfie was heard in the Court of Appeal, where the appellant sought leave to appeal his conviction and sentence. The appellant was found guilty of various sexual offences involving several complainants. The issue at hand was whether the trial judge erred by not providing a warning against using the evidence of uncharged acts for propensity reasoning. Additionally, the appellant contested the appropriateness of his sentence, which was longer than what would typically be appropriate for the gravity of the offence.

The court examined whether the trial judge's failure to warn against propensity reasoning constituted a miscarriage of justice. It was noted that, while the trial judge did not explicitly issue a warning, the jury was adequately directed on the proper use of the evidence in question. The court found that the jury was sufficiently guided by the judge's directions, and thus, the lack of a specific warning did not lead to a miscarriage of justice. Regarding the sentence, the court considered whether the length of the sentence was appropriate for the gravity of the offence, taking into account section 6D(b) of the Sentencing Act 1991. The court found that the sentence imposed was appropriate and did not constitute an error.

The court ultimately denied the appellant leave to appeal, affirming the conviction and sentence. The court held that the trial judge's directions to the jury were sufficient to prevent any misuse of the uncharged acts evidence, and that the sentence imposed was appropriate for the gravity of the offence. As such, the appellant's application for leave to appeal was dismissed.

Orders