R v Mitchell - [2000] VSCA 54

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 336 of 1999

THE QUEEN

HERBERT GEORGE MITCHELL

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JUDGES:	TADGELL and CHERNOV, JJ.A. and HEDIGAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 April 2000
DATE OF JUDGMENT:	10 April 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 54

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Criminal law - Multiple sexual offences alleged against ten complainants - Severance - Evidence - propensity - Whether "striking similarity" a necessarily relevant criterion - Whether misdirection to instruct jury to consider as the real issues "Did he do it?" or "Did he not do it?" - Majority verdict - Whether properly sought from jury - Whether judge's summary for jury of facts was unbalanced - Sentence - Medical condition of seriously ill 77 year-old deteriorated since sentence - Re-sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C. and Mr. A.D. Trood	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. R. Gipp	Lander & Rogers

TADGELL, J.A.:

The applicant, Herbert George Mitchell, is now aged 77, having been born on 13 May 1922. He was presented in the County Court in November 1998 upon 30 counts of having indecently assaulted a female under the age of 16 years, contrary to s.55(1) of the Crimes Act 1958. Each of counts 1 to 28 was alleged to have been committed at Terang against one of nine separate complainants during the period 1 October 1967 to 31 May 1973. During that period the applicant was aged from 45 to 51 years. Counts 29 and 30 were alleged to have been committed at East Brighton against another single complainant between 1 January 1982 and 31 August 1983, when the applicant was some 60 to 61 years of age.

At the outset of the trial application was made to the judge to sever the counts in respect of each complainant, so that there would be not one trial but ten, one for the counts alleged in respect of each complainant. His Honour acceded to that application to the extent of ordering severance of counts 29 and 30, those which had occurred in 1982 to 1983 at East Brighton, but he otherwise refused the application. The trial therefore proceeded in relation to counts 1 to 28. After a trial of some 13 or 14 days, the jury found the applicant guilty, by a majority verdict, of counts 1 to 6 and 9 to 28. After a plea in mitigation had been made on the applicant's behalf, the learned judge on 16 December last year sentenced the applicant to be imprisoned for 12 months on each of the counts on which he had been convicted. There was, after orders for cumulation, a total effective sentence of three years and one month's imprisonment and his Honour imposed a period of one year and one month to be served before the applicant should become eligible for release on parole. Nine days pre-sentence detention were recorded.

The applicant now applies for leave to appeal against…

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 Mitchell

Details

AGLC: R v Mitchell [2000] VSCA 54
Case: [2000] VSCA 54
Decision Date: 10 April 2000

CaseChat Overview and Summary

The case of R v Mitchell involved the appellant, who was convicted of various sexual offences against ten complainants. The case was heard in the Court of Criminal Appeal. The appeal was against the conviction and sentence, with the primary issues being the severance of charges, the admissibility of evidence, the jury's verdict process, and the appropriateness of the sentence given the appellant's medical condition.

The legal issues included whether the trial judge should have severed the charges against the appellant due to the similar nature of the offences. The court also considered if the judge was correct in directing the jury to consider only whether the appellant did or did not commit the offences. Furthermore, the court examined whether the judge's summary of facts to the jury was fair and balanced, and if the sentence was appropriate given the appellant's health at the time of sentencing.

The court found that the trial judge did not err in declining to sever the charges, as there was no "striking similarity" that necessitated severance. The court also determined that the judge's direction to the jury was not a misdirection, as it correctly focused the jury on the key issue of whether the appellant committed the offences. Regarding the jury's verdict, the court held that it was appropriate for the trial judge to seek a majority verdict from the jury. The court found no imbalance in the judge's summary of facts to the jury. Finally, concerning the sentence, the court granted the appeal due to the appellant's significantly deteriorated medical condition since the original sentencing.

The final orders included allowing the appeal against the sentence, with the Court of Criminal Appeal ordering a re-sentencing hearing to consider the appellant's current medical condition. The convictions themselves were upheld, but the sentence was to be reconsidered in light of the appellant's health.

Orders