SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 156 of 1997
THE QUEEN
v
"R.H. McL"
---
| JUDGES: | PHILLIPS, C.J., BATT and KENNY, JJ.A. |
| WHERE HELD: | MELBOURNE |
| DATES OF HEARING: | 14 and 21 September 1998 |
| DATE OF JUDGMENT: | 9 October 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSCA 61 First Revision 19 March, 1999 |
---
Criminal law - Sexual offences - Incest, rape and indecency - Dates of counts - Variances in evidence - Whether date essential element - Whether conviction uncertain - Whether verdict must be taken on all counts - Whether verdicts unsafe and unsatisfactory - Uncharged acts - Admissibility - Inadvertent misdirection - Complaint - Direction that "the law says ..." - Whether Court of Appeal, after quashing convictions on some counts, may pass substitute sentences on remainder - Crimes Act 1958, ss.422(1), 569(1).
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. C.J. Ryan | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | P.F. Tehan Q.C. | Leanne Warren & Assocs. |
PHILLIPS, C.J.:
I have had the benefit of reading the judgment of Batt, J.A. in draft form. I concur in the conclusions His Honour has reached and I would subscribe to his reasons therefor.
BATT, J. A.:
Introduction
This is an application for leave to appeal against conviction. The applicant, whom I shall where necessary call "Ron", was born on 18 August 1952 and at the dates of the offences charged (which extended from 1 January 1988 to 31 August 1996) he was aged between 35 and 44 years. On 29 July 1997 the applicant and his wife (whom I shall call X) were presented in the County Court at Melbourne on a presentment alleging the commission of numerous sexual offences against the wife's daughters by a previous marriage, whom I shall call A and B, who were thus the applicant's step-daughters. They were born on 27 September 1976 and 14 September 1977 respectively. Some offences were alleged against both the applicant and his wife jointly and the balance against one or other of them. On arraignment the applicant pleaded not guilty to
•
ten counts of incest (counts 1, 3, 4, 5, 7, 10, 11, 20, 23 and 24), contrary, in the case of the earlier counts, to s.52(1) of the Crimes Act 1958 as substituted by the Crimes (Sexual Offences) Act 1980 and, in the case of the other counts, to s.44 of the first- mentioned Act ("the Act") as substituted by the Crimes (Sexual Offences) Act 1991, for which the maximum penalty under either section was imprisonment for 20 years;
•
two counts of gross indecency with a person under the age of 16 years who was under his care, supervision or authority (counts 2 and 8), contrary to s.50(2) of the Act as substituted by the Act of 1980, for which the maximum penalty was imprisonment for three years;
•
one count of rape (count 6), contrary to s.45(1) of the Act as substituted by the Act of 1980, for which the maximum…
Continue reading R v McL
Sign in free to access the full text
Details
- AGLC
- R v McL [1998] VSCA 61
- Case
- [1998] VSCA 61
- Decision Date
CaseChat Overview and Summary
In the matter of R v McL, the applicant was convicted of various serious sexual offences against his two step-daughters, A and B. The applicant's wife had previously been convicted of similar offences against the same girls. The Supreme Court of Victoria heard the case and the applicant appealed against his convictions and sentences. The legal issues that the court had to decide involved the admissibility of certain evidence, variances in the dates of the offences, and whether the verdicts were unsafe and unsatisfactory. The court examined the evidence of uncharged acts of prostitution and prior sexual conduct between the applicant and the victims, and whether these were relevant to the charges against the applicant. The court also considered whether the variances in the dates of the offences meant that the convictions were uncertain and whether the verdicts should be taken on all counts. The court found that some of the evidence was inadmissible but that the remaining evidence was sufficient to uphold the convictions. The court also held that the variances in the dates of the offences did not make the convictions uncertain and that the verdicts were safe and satisfactory. The Court of Appeal varied the sentences imposed by the trial judge.
In this case, the court considered the admissibility of certain evidence, including evidence of uncharged acts of prostitution and prior sexual conduct between the applicant and the victims. The court found that some of this evidence was inadmissible, but that the remaining evidence was sufficient to uphold the convictions. The court also considered variances in the dates of the offences and held that they did not make the convictions uncertain. The court held that the verdicts were safe and satisfactory and varied the sentences imposed by the trial judge. The applicant's appeal against his convictions was dismissed, but his appeal against sentence was allowed and a new sentence was imposed.
In this case, the court considered the admissibility of certain evidence, including evidence of uncharged acts of prostitution and prior sexual conduct between the applicant and the victims. The court found that some of this evidence was inadmissible, but that the remaining evidence was sufficient to uphold the convictions. The court also considered variances in the dates of the offences and held that they did not make the convictions uncertain. The court held that the verdicts were safe and satisfactory and varied the sentences imposed by the trial judge. The applicant's appeal against his convictions was dismissed, but his appeal against sentence was allowed and a new sentence was imposed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For completeness I record briefly that the applicant's wife, having been found guilty of committing an act of gross indecency with her eldest daughter A when the latter was aged 13 or 14 (count 8) and of committing incest with her second daughter B when the latter was aged 13 or 14 (count 22), was sentenced by her Honour to imprisonment for 18 months upon count 8 and 30 months upon count 22, with 18 months to be cumulative upon the sentence upon count 8, making a total effective sentence of 3 years' imprisonment. Her Honour fixed a non-parole period of 28 months. The applicant's wife abandoned an application for leave to appeal against conviction, but on 3 August 1998 a division of this Court allowed her appeal against sentence and varied the sentence by fixing a new non-parole period of 18 months. The facts I turn now to summarise the facts disclosed by the evidence below. The applicant and X, along with his step-daughters A and B, cohabited since 1980 in a house on Melbourne's south-western fringe. The union produced two further daughters, C, born 26 June 1981, and D, born 13 July 1982. The applicant and X were married on 24 May 1985. All four daughters gave evidence at their parents' trial. All the offences were alleged to have taken place in the family house or, in two cases, in the garage on the property. With regard to the individual offences of which the applicant was found guilty, the evidence in summary was as follows. As to count 2, gross indecency upon B between 1 January and 31 December 1998, B recalled an occasion when her mother was out of the house collecting some bunk beds and B and the applicant were in the loungeroom. The applicant picked up B's hand and placed it over his penis. This continued for about five to ten minutes. B felt upset and hurt, immediately left the room and started crying. As to counts 3 and 4, two counts of incest with A between 1 January 1988 and 27 September 1992, A recalled a hot night in the summer months when she was 13 or 14 years old and sharing a bedroom with D. The applicant entered the bedroom, got into the bottom bunk with A and made her perform fellatio upon him (count 3). He then turned A on to her back. He inserted his penis into her vagina and ejaculated inside her (count 4). As to count 5, incest with B between 14 September 1988 and 31 December 1990, B stated that the first time that vaginal sexual intercourse occurred between her and the applicant was when she was aged around 10 or 11 years. She said that she was in the bedroom of the applicant and her mother folding and putting away clean laundry. The applicant took off her pants and inserted his penis into her vagina. The sexual activity continued for about 15 to 20 minutes. This caused B to bleed. As to count 6, rape of B between 14 September 1988 and 3 August 1993, B recollected one occasion when she said, "No", to the applicant. She stated that they were in the bedroom and the applicant started touching her. She said, "No". The applicant got upset, pushed her on to the bed and held her arms open on the bed. He pulled down her pants, inserted his penis into her vagina and continued, despite her protests, for 20 minutes or more.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Her Honour warned the jury that they must not reason that, simply because the accused might have done something else of a criminal nature in the past "with [A] and with [B]", he was the kind of person likely to have committed the offences the subject of the counts. They could only convict him on the counts before them if satisfied of all the facts that go to make up those charges. They could not use that other criminal conduct to make up any elements in the counts before them. Her Honour went on: "Now, the law recognises, I think, what some people call a guilty passion of an adult for a child, and the way that this evidence traditionally is allowed in our courts is, if you find this evidence credible, if you accept it, that it simply makes it more credible to understand how the acts occurred in the counts that are actually before you. Now the evidence of the Thursday nights is slightly different, because it is not suggested that you can use this evidence to establish a guilty passion between [A] and the men participating in the acts of prostitution, or in any way so directly as that, but it is simply put before you, as I understand it, to give you the background pattern of what it was that happened on Thursday nights in the [McL] household. It is put because you might otherwise not be able to understand the evidence which is given in relation to the particular prostitution counts. It might explain for you, if you accept it, why it was that [A] submitted on the particular occasions which are the subject of the counts, and it is put before you simply in that way. It is not put before you in order to demonstrate that the acts which are alleged to have occurred on those particular nights can be proved to have occurred by using this evidence. You must be careful to use that evidence in the way that I have directed you to." Her Honour concluded this portion of the charge by repeating her warning that the evidence of prior sexual conduct "between [the applicant] and A and B" and the prostitution evidence had no relevance to the charges against X. Grounds 2 and 3: arguments and conclusions These grounds may be taken together for they raise questions of admissibility. I agree with her Honour that whether the jury was to be discharged depended upon whether the evidence in question (or, perhaps, sufficient of it) was inadmissible. The tenor of ground 3 is not entirely clear to me. It concedes for the purpose of argument strict admissibility but, as I understand it, goes on to raise questions of admissibility, prejudice and use to which the evidence could be put. Mr. Tehan contended that all the evidence in question was inadmissible. He submitted that the incidents referred to in the items of evidence listed above as (i) and (vi) did not assist the jury in understanding the relationship between the parties. There was no specification in the evidence to indicate when either act had occurred. Both acts were vague in nature and the prejudicial impact of the evidence outweighed its probative value. As to the evidence of uncharged acts of prostitution, he pointed out, correctly, that the counts of child prostitution were not representative and therefore the evidence of the uncharged acts was not admissible on that basis. He submitted that this evidence was not admissible as relationship evidence as its probative value had "clearly (to) transcend" its prejudicial effect (referring to McHugh, J., dissenting, in Pfennig v. The Queen (1995) 182 C.L.R. 461 at 513, citing Brennan, J. in Perry v. The Queen (1982) 150 C.L.R. 580 at 609, though McHugh, J. also used "outweigh" as an alternative); and that the Crown had to establish this before the evidence was admissible (referring to R. v. Vonarx (unreported, Court of Appeal, 15 November 1995)). He said that uncharged acts are too readily admitted as evidence of relationship, referring to Gipp v. The Queen at paras.176 and 181 per Callinan, J. and also to Gaudron, J.'s reference to their admission being exceptional at paras.10 and 11 of that decision. He submitted, I believe correctly, that the evidence was not led to show the identity of the offender or to demonstrate by some peculiar method of operation the object of improbability of the applicant's innocence, referring to R. v. Wackerow [1998] 1 Qd.R. 197, noted by Callaway, J.A. in R. v. Best (unreported, Court of Appeal, 23 July 1998) at p.12. Nor, he submitted, was it similar fact evidence. There was, he said, no feature of the evidence which made it directly relevant to proof of guilt on the prostitution counts, each of which had their own specific factual background, as the prosecutor had pointed out. Mr. Tehan claimed that the evidence was not said to show a guilty passion, referring to Dawson, J.'s discussion of that topic in S v. The Queen at 275. He conceded that the evidence might have become relevant if, for example, failure to complain was raised, but contended that it should not have been given by the complainant in chief, citing Gaudron, J. in Gipp at para.12. He said that, where evidence of relationship is admitted, a strong connection between that evidence and the crime will be shown, citing O'Leary v. The King (1946) 73 C.L.R. 566 at 577-578 per Dixon, J. as to the unintelligibility of the transaction there without the evidence, and Wilson v. The Queen (1970) 123 C.L.R. 334 at 339. He concluded by submitting that proof that the applicant procured A to engage in sexual penetration on many occasions with "John" did not establish a relationship with the applicant "in so far as other men were concerned".
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.