R v Mg - [2004] VSCA 239

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 299 of 2002

THE QUEEN
	v.
MG

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JUDGES:	WARREN, C.J., BATT and EAMES JJ.A
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 June 2004
DATE OF JUDGMENT:	17 December 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 239

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Criminal law – Evidence – Sexual offences – Whether evidence of alcoholism of applicant wrongly admitted – Propensity – Adequacy of direction – Whether conviction unsafe and unsatisfactory – Crimes Act 1958, ss.44(1), 47(1).

Appeals – Practice and procedure – Application for leave to appeal against conviction dealt with on the papers: s.572 Crimes Act 1958, R.2.28.2 of Chapter VI Supreme Court (Criminal Procedure) Rules 1998.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G.J.C. Silbert	Ms K Robertson, Solicitor for Public Prosecutions
For the Applicant	In person (by written submissions)

WARREN, C.J.:

The applicant “MG” was presented for trial in the County Court on the charge that between 1 and 30 September 1983 he indecently assaulted the complainant (counts 1 and 2) and that he also took part in an act of sexual penetration with the complainant being a child under ten years (count 3)[1]. He pleaded not guilty. He was convicted and sentenced on the present presentment and a fifth presentment[2] to a total effective sentence of four years and ten months’ imprisonment with a minimum period of two years and six months before being eligible for parole. The applicant seeks leave to appeal against conviction.
[1]Following preliminary argument at the trial, the original presentment, number PO1939741 relating to a number of complainants, including the complainant in the application, was withdrawn and four fresh presentments were filed. The first of those presentments, number PO1939741.1 preferred four counts of indecent assault on a girl under 16 being one of the other complainants. The applicant pleaded guilty to each of the counts on the first presentment. The second presentment relating to two complainants, including the complainant in the present application and involving six counts was severed into two presentments, of which one proceeded at trial and was the subject of the present application. Ultimately the fourth presentment was replaced by a fifth, numbered PO1939741.5, containing one count, to which the applicant pleaded guilty.
[2]No. PO1939741.5

The complainant, “JH”, was the niece of the applicant. She was eight years old and the applicant was 27 years old at the time of the alleged events. The complainant, in her evidence, described that around this time in 1983 she was taken to her grandparents’ house regularly, about once or twice a week, sometimes for a visit and sometimes to stay. The applicant and his partner, who later became his wife, were living at his parents’, the complainant’s grandparents’ house at the time. The complainant gave evidence of events that occurred over one night in September 1983. She said she was at her grandparents’ home and that the applicant was present. The complainant said that she went upstairs whilst in the house to watch a television programme called “Prisoner”…

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 Mg

Details

AGLC: R v Mg [2004] VSCA 239
Case: [2004] VSCA 239
Decision Date: 17 December 2004

CaseChat Overview and Summary

The case of R v Mg involved a dispute over the admissibility of certain evidence in a criminal trial. The applicant, Mg, appealed against his conviction for sexual offences, arguing that evidence of his alcoholism was wrongly admitted and that the trial judge's direction to the jury on this matter was inadequate. The case was heard in the Supreme Court of Victoria. The applicant contended that the evidence of his alcoholism was irrelevant and prejudicial under the Crimes Act 1958, and that the trial judge's direction did not adequately address the potential prejudice of this evidence.

The legal issues before the court were whether the evidence of alcoholism was properly admitted, and if not, whether this affected the adequacy of the trial judge's direction to the jury. The court considered whether the evidence of alcoholism had a propensity to suggest a predisposition to commit the offences and if its probative value was outweighed by the danger of unfair prejudice. The court also assessed whether the trial judge's direction to the jury was sufficient to mitigate any potential prejudice caused by the evidence.

The court concluded that the evidence of alcoholism was wrongly admitted as it was not relevant to the charges and had the potential to unfairly prejudice the jury. However, the court found that the trial judge's direction to the jury was adequate in mitigating the prejudicial effect of the evidence. The court held that the admission of the evidence did not render the conviction unsafe and unsatisfactory. Consequently, the appeal against conviction was dismissed.

No further orders were made by the court as the appeal against conviction was dismissed.

Orders