R v Miller - [2000] VSCA 67

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 83 of 1999

THE QUEEN

GARY LEONARD MILLER

---

JUDGES:	TADGELL and CHERNOV, JJ.A. and HEDIGAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 April 2000
DATE OF JUDGMENT:	12 April 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 67

---

CRIMINAL LAW - Appeal - Sexual offences with a child under 16 - Issue of complainant's motive to lie first raised by Crown Prosecutor in final address - Whether ground for the discharge of the jury - Whether any prejudicial effect curable by direction to the jury - Palmer v. R. (1998) 193 C.L.R.1 - Compliance by jury with direction.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Pullen	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr S.G.S. Collins	Kerry Clancy

TADGELL, J.A.:

I shall invite Chernov, J.A. to deliver the first judgment in this case.

CHERNOV, J.A.:

The applicant, who was born on 14 August 1943, was presented in the County Court at Shepparton on 18 February 1999 on two counts of sexual penetration of a child under 10 years (counts 1 and 4), one count of committing an indecent act with a child under 16 years (count 2) and one count of making a threat to kill (count 3). On 24 February 1999 the jury returned verdicts of guilty to counts 1, 2 and 4 and not guilty to count 3. After hearing a plea in mitigation of sentence made on his behalf, the learned judge sentenced the applicant to be imprisoned for a total effective sentence of two years and six months. His Honour ordered that 18 months of the sentence be served cumulatively upon a sentence that had been earlier imposed on him on 29 January 1999 in respect of convictions on related counts. His Honour fixed a non-parole period of two years.

The applicant now seeks leave to appeal against conviction. The grounds on which leave to appeal was originally sought were, first, that his Honour failed to give a corroboration warning to the jury and, secondly, that his Honour failed to discharge the jury after the prosecutor impermissibly raised with the jury in his final address the issue of whether the complainant had any motive to lie about the offences. At the commencement of the hearing of this application, the applicant abandoned the first ground. Consequently we are only concerned with the claim that the applicant was denied a fair trial because his Honour wrongfully refused to discharge the jury.

Three of the alleged offences were said to have been committed during a weekend fishing and camping trip in November 1997 undertaken by the applicant, the complainant, the complainant's father and one of his sisters. It was alleged by the complainant that on the Friday night when he had gone to bed in the back of the applicant's utility on a double bed mattress which he shared with the applicant, the applicant pulled the complainant over to himself and played with…

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 Miller

Details

AGLC: R v Miller [2000] VSCA 67
Case: [2000] VSCA 67
Decision Date: 12 April 2000

CaseChat Overview and Summary

In the case of R v Miller, the appellant, Miller, was convicted of various sexual offences involving a child under the age of 16. The court of appeal reviewed the trial judge's handling of a late-raised issue by the Crown prosecutor concerning the complainant's potential motive to lie. This issue was first introduced during the prosecutor's final address, after both parties had presented their closing arguments, and before the judge's summation to the jury.

The legal issues before the court were whether the late introduction of the complainant's motive to lie constituted a ground for discharging the jury and, if not, whether any potential prejudicial effect could be cured by directing the jury to consider this issue. The court considered the principles established in Palmer v. R. (1998) 193 C.L.R.1, which address the timing of introducing evidence and the potential for prejudice. The court also examined whether the jury complied with the trial judge's direction in relation to this issue.

The court held that the introduction of the complainant's motive to lie, although untimely, did not necessitate the discharge of the jury. Instead, the court found that any potential prejudice could be mitigated by directing the jury to consider this issue. The court assessed the trial judge's direction to the jury and concluded that it was appropriate and likely to have been followed by the jury. The appeal was ultimately dismissed, and the conviction was upheld.

Orders