R v MAG

Case [2005] VSCA 47 18 March 2005

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 294 of 2003

THE QUEEN
	v.
M.A.G.

---

JUDGES:	WINNEKE, P., CHERNOV, J.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 February 2005
DATE OF JUDGMENT:	18 March 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 47

---

Criminal law – Sexual offences against children – Admission of “recent complaint” evidence – Evidence not capable of qualifying as “recent complaint” – Directions in respect of “complaint evidence” inadequate - Consequence of failure to take exception – Judge’s comments on her experience in court about complaint evidence not prejudicial but undesirable – Judge erring in permitting VATE tape evidence to be replayed to jury without cautioning the jury not to give unnecessary weight to such evidence – Appeal against convictions allowed - Retrial ordered.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs. C.M. Quin	Solicitor for Public Prosecutions
For the Applicant	Mr. P.G. Priest, Q.C. and Mr S. Gillespie-Jones	Paul A. Vale Pty.

WINNEKE, P.:

The applicant was presented in the County Court at Melbourne in September 2003 on a presentment containing 14 counts alleging (principally) sexual assaults against two young daughters of his de facto partner. I will call those daughters respectively “C” and “S”. At the time of the alleged offending, C was aged approximately 14 to 15 years; and S was aged approximately 11 to 12 years. 11 of the counts on the presentment alleged offences against C, and the remaining three alleged offences against S. The offending was alleged to have occurred between June 2000 and June 2001 at premises where the parties lived in Bacchus Marsh.

After a trial which was conducted over several days and at which no evidence was called by the defence, the jury convicted the applicant of seven of the counts involving C, namely count 1 (threat to kill), counts 2 and 7 (incest), count 3 (attempted indecent act) and counts 9, 10 and 11 (indecent act). The applicant was further convicted of one count (namely count 12, incest) of the three counts involving S. (Counts 12 to 14). The applicant was acquitted on counts 4, 5, 6, 8, 13 and 14.

On 3 October 2003 the judge sentenced the applicant to a total effective sentence of four years’ imprisonment and directed that he serve 2½ years of that term before becoming eligible for parole.

The applicant has now applied to this Court for leave to appeal against his convictions upon a number of grounds. Those grounds assert:

· Ground 2(A) – misdirections with respect to “recent complaint”.

· Ground 2(B) – prejudicial “comments” by the judge concerning sexual allegations.

· Ground 3 – errors related to the use of the “VATE” tape.

Ground 2(A) – Recent Complaint Directions

Mr. Priest who appeared with Mr. Gillespie Jones for the applicant contended that – in a trial such as this where the evidence of the complainants was vague in respect of specific allegations and was met by blanket denials by the applicant in his record…

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 MAG

Details

AGLC: R v MAG [2005] VSCA 47
Case: [2005] VSCA 47
Decision Date: 18 March 2005

CaseChat Overview and Summary

In the matter of R v MAG, the respondent faced charges related to sexual offences against children. The dispute revolved around the admissibility and handling of "recent complaint" evidence in the context of the criminal proceedings. The case was heard and determined by the court of appeal in Australia.

The central legal issues the court was required to address involved whether the evidence presented could properly be categorised as a "recent complaint" and if the trial judge's directions to the jury regarding such evidence were adequate. Additionally, the court examined whether the judge's comments about her personal experience with complaint evidence were prejudicial and whether the judge's decision to replay a videotaped evidence to the jury without providing a cautionary instruction was an error.

The court found that the evidence in question did not meet the criteria for a "recent complaint" and that the judge's directions to the jury concerning this type of evidence were inadequate. The court further determined that while the judge's comments on her experience with complaint evidence were not prejudicial, they were undesirable. The judge's decision to replay videotaped evidence without cautioning the jury not to give undue weight to it was deemed an error. Consequently, the appeal against the convictions was allowed, and a retrial was ordered.

Orders