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R v Macfie (No 2)

R v Macfie (No 2)

Case [2004] VSCA 209 24 November 2004

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 22 of 2003

THE QUEEN

JOHN WILLIAM MACFIE (NO. 2)

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JUDGES:	CALLAWAY, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 September 2004
DATE OF JUDGMENT:	24 November 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 209

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Criminal law – Sexual offences against multiple complainants – Address by prosecutor – Criticism by prosecutor of evidence of Crown witnesses – Witnesses and accused not given notice while witnesses in witness box as to proposed criticism – Duty of prosecutor – Directions as to prosecutor’s address and as to corroboration and delay – Whether full value given to accused of acquittal of offence on previous trial.

Sentence – Re-trial – Fewer and less serious convictions on re-trial – Same sentence imposed after re-trial as on first trial – Whether lower sentence ought to have been imposed – Sentencing error disclosed – Re-sentencing – Delay – Absence of remorse – Serious sexual offender – Relevant prior convictions – Total effective sentence of eight years with four years to be served cumulatively on current sentence, reduced to seven years with two years to be served cumulatively on current sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. Dr S.B. McNicol	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr T. Kassimatis	Robert Starey & Associates

CALLAWAY, J.A.:

I doubt that the question set out by Eames, J.A. in [52] would be a leading question or contravene the rule against impeaching the credit of one’s own witness, but those points need not be decided. I agree with his Honour that the failure to ask such a question did not render the applicant’s trial unfair. I also find it unnecessary to decide whether the accomplice warning was appropriate. I agree with his Honour that it did not prejudice the applicant. Subject to those qualifications, I agree in the reasons prepared by Eames, J.A., which I have had the benefit of reading in draft, and in the orders that he proposes.[1]

BUCHANAN, J.A.:

[1]One of those orders will fix a new single non-parole period pursuant to s.14 of the Sentencing Act 1991 to commence on the date not of the sentence we are setting aside but of the earlier sentence with which part of our sentence will be served concurrently. That is an appropriate departure, in the circumstances of this case, from the practice exemplified by R. v. Denysenko [1999] VSCA 106 at [17] and [21] and Director of Public Prosecutions v. Ibrahimoff (2001) 3 V.R. 66 at [6]-[7].

For the reasons stated by Eames, J.A., I would refuse the application for leave to appeal against conviction, allow the application for leave to appeal against sentence and re-sentence the applicant as his Honour proposes.

EAMES, J.A.:

This is an application for leave to appeal against conviction and sentence. The applicant was tried in the County Court at Warrnambool on 16 counts of sexual offences committed against four girls under the age of…

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 (No 2)

Details

AGLC: R v Macfie (No 2) [2004] VSCA 209
Case: [2004] VSCA 209
Decision Date: 24 November 2004

CaseChat Overview and Summary

The case of R v Macfie (No 2) involved the respondent facing a re-trial following an earlier acquittal on certain charges. The court had to consider the legal implications of the prosecutor's address, where the prosecutor criticised the evidence of Crown witnesses without prior notice to the respondent or the witnesses. The court examined whether this criticism, delivered while the witnesses were in the witness box, was in breach of the prosecutor's duty, and if the trial judge's directions adequately addressed the issues of corroboration and the impact of the delay between the first and second trial.

The primary legal issues included whether the prosecutor's conduct was appropriate and whether the trial judge's directions were sufficient to ensure a fair trial. Furthermore, the court needed to determine if the same sentence should have been imposed following the re-trial, given that the respondent was convicted of fewer and less serious offences compared to the first trial. The court also considered whether the sentence imposed constituted an error that warranted re-sentencing.

In delivering its judgment, the court found that the prosecutor's address did not breach any duty, as the criticisms made were not prejudicial to the respondent. Regarding sentencing, the court concluded that while the sentence imposed was harsh, it was not so excessive as to warrant re-sentencing. However, considering the delay, the absence of remorse, and the respondent's status as a serious sexual offender with relevant prior convictions, the court reduced the total effective sentence from eight years to seven years, with two years to be served cumulatively on the current sentence.

Orders