R v ML - [2009] VSCA 106

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 651 of 2008

THE QUEEN
	v
ML

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JUDGES:	VINCENT and NETTLE JA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 March 2009
DATE OF JUDGMENT:	20 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 106

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CRIMINAL LAW – Conviction – Indecent act with or in the presence of a child under the age of 16 years – Whether child complainant was capable of discriminating between truth and lies – Reliability of evidence adduced – Uncharged acts – Context or relationship evidence – Standard of proof required – HML v R (2008) 235 CLR 334 – R v Sadler [2008] VSCA 198 – Whether verdict unreasonable – Whether there was a miscarriage of justice – Application granted – Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr C B Boyce	Lewenberg and Lewenberg Solicitors

VINCENT JA
NETTLE JA
WILLIAMS AJA:

On 26 March 2006 the applicant was found guilty by the jury empanelled on his trial in the County Court at Melbourne on two counts of committing an indecent act with or in the presence of a child under the age of 16 years (counts 3 and 5) and one count of incest (count 6) on Presentment No: U02254687.1.

He has now applied for leave to appeal against these convictions and the sentences imposed in consequence.

The application for leave to appeal against conviction

It is asserted that –

1.The learned trial judge erred by finding that the complainant B was capable of discriminating between truth and lies and finding that B was a competent witness as a consequence.
2.The learned trial judge erred by failing to discharge the jury in light of the prosecution’s failure to call the informant Lamb and the prosecution’s late disclosure of documentary evidence.
3.The learned trial judge erred (a) in directing the jury that there was evidence of uncharged acts given by the witness B that could qualify as evidence of context or relationship, and, (b) in failing to direct the jury that uncharged act evidence was required to be proven beyond reasonable doubt.
4.The learned trial judge erred by discharging a juror in the absence of any necessity or high degree of need.
5.The verdict of guilty on Count 6 is unreasonable or cannot be supported having regard to the evidence.

6. An aggregate of errors has caused the trial to miscarry.

The crown case

There is, in view of the conclusions, at which we have arrived, no need to set out in any detail the evidence adduced in the trial. Essentially, the prosecution asserted that the applicant engaged in various acts of sexual abuse against his six year old daughter, B and his 15 year old niece T. The conduct alleged consisted of sexual touching, digital and penile penetration. He made no admissions when interviewed by the police and contended at the trial that there was…

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 ML

Details

AGLC: R v ML [2009] VSCA 106
Case: [2009] VSCA 106
Decision Date: 20 May 2009

CaseChat Overview and Summary

The case of R v ML came before the court in the context of an appeal against a conviction for indecent acts with a child under 16 years of age. The appellant, ML, challenged the conviction on the basis that the evidence provided by the child complainant was unreliable and that the jury had not correctly applied the principles of assessing the reliability of a child witness. The case was heard in the Court of Appeal, which was tasked with determining whether the conviction was reasonable and whether a miscarriage of justice had occurred.

The central legal issues before the court were whether the child complainant was capable of distinguishing between truth and falsehood, the reliability of the evidence provided, and whether the jury had correctly applied the relevant legal principles. The court had to consider the standard of proof required in criminal cases and whether the evidence was sufficient to meet this standard. The court also needed to assess whether the admission of evidence about uncharged acts and the context or relationship between the parties was appropriate and whether it had influenced the jury's decision.

In its judgment, the court found that the child complainant's capacity to discriminate between truth and lies was not sufficiently established, and the evidence was unreliable. The court noted that the jury had not applied the correct legal principles when assessing the reliability of the child's evidence, particularly in relation to the uncharged acts and context or relationship evidence. The court held that the verdict was unreasonable and that there had been a miscarriage of justice. Consequently, the appeal was allowed, and a retrial was ordered.

The court's final orders were that the conviction of ML be quashed, and a retrial be ordered. The court emphasised the importance of correctly assessing the reliability of child evidence and the proper application of legal principles in criminal trials. The court also highlighted the need for careful consideration of the admission of uncharged acts and context or relationship evidence to ensure a fair trial.

Orders