R v MTP - [2002] VSCA 81

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 302 of 2001

THE QUEEN
	v.
MTP

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JUDGES:	PHILLIPS, C.J., ORMISTON and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 May 2002
DATE OF JUDGMENT:	30 May 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 81

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CRIME – Committing indecent acts on a child under 16 years – Evidence given by “VATE procedure” – Whether special direction to jury always required – Motives for making complaint – Whether verdicts unsafe and unsatisfactory – Evidence Act 1958 s.37B – R. v. NRC [1999] 3 V.R. 537.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Pullen	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr N. Papas

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Ormiston, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

ORMISTON, J.A.:

These applications arise out of verdicts of guilty brought in by a jury in the County Court on three counts of committing indecent acts on the 1^st and 2^nd January 2000 with the applicant’s “stepdaughter”,[1] then nine years of age. In consequence the applicant was sentenced to be imprisoned for nine months on each of counts 1 and 2 and for 15 months on count 3, which related to the last of the three incidents. It was ordered that six months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 3 which led to him being treated as a “serious sexual offender” within the meaning of the Sentencing Act 1991. Having regard to the deemed concurrence of the sentence on the first count, the total effective sentence was 21 months' imprisonment, in relation to which it was ordered that 12 months of that sentence be suspended for three years. Various presently irrelevant consequential orders were also made. When application to appeal against conviction was first made, the sole ground of appeal was that the mother of the complainant should have been called by the Crown to give evidence. More recently two additional grounds were added by leave. However, as presented to this Court by counsel for the applicant in his outline (and orally) it was stated that it was “not proposed to direct separate argument to this ground” so far as each of grounds 1 and 3[2] was concerned. In fairness to counsel it should be observed that the substance of grounds 1 and 3 were largely also relied on in ground 2, as effectively the only ground argued, which read:
[1]I use this expression though the applicant and his partner, the complainant’s mother, had lived together for several years but were not married.
[2]As it stood before amendment.

“The applicant’s convictions on all counts were unsafe and unsatisfactory in the light of
(a)     The absence of corroborating or confirmatory evidence.
(b)    The complainant’s motives to be hostile to the applicant.
(c)    The failure of the Crown to…

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 MTP

Details

AGLC: R v MTP [2002] VSCA 81
Case: [2002] VSCA 81
Decision Date: 30 May 2002

CaseChat Overview and Summary

The accused, MTP, was found guilty of committing indecent acts on a child under the age of 16. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The primary focus of the appeal was the admissibility and impact of evidence provided by the complainant under the provisions of the "VATE procedure," which allows for the giving of evidence via video-link to protect vulnerable witnesses. Additionally, the appeal questioned whether a special direction to the jury is always necessary when such evidence is presented and examined the relevance of the complainant's motives for reporting the incidents.

The legal issues addressed by the court involved the interpretation of the Evidence Act 1958, specifically section 37B, which pertains to the use of the VATE procedure. The court had to determine whether the absence of a special direction to the jury regarding the reliability of video-link evidence rendered the verdict unsafe and unsatisfactory. The appeal also examined whether the motives of the complainant for making the complaint could be considered by the jury in assessing the reliability of the evidence.

In delivering the judgment, the court held that while a special direction to the jury is generally advisable when evidence is presented under the VATE procedure, its absence does not automatically invalidate the verdict. The court emphasised that each case must be assessed on its own merits, considering factors such as the circumstances of the evidence, the reliability of the video-link technology used, and the overall context of the case. The court further clarified that the motives of the complainant, while potentially relevant, do not automatically undermine the credibility of the evidence provided. The appeal was dismissed as the court found no basis to conclude that the verdicts were unsafe and unsatisfactory.

No additional orders were made by the court beyond the dismissal of the appeal. The conviction of MTP for committing indecent acts on a child under 16 years of age was upheld.

Orders