R v O'Neill - [2003] VSCA 204

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 86 of 02

THE QUEEN
	v.
CRAIG MAXWELL O'NEILL

---

JUDGES:	WINNEKE, P., VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 October 2003
DATE OF JUDGMENT:	12 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 204

---

Criminal Law – Conviction – Indecent act with child under 16 years – Incest – Exclusion of evidence – Section 37A Evidence Act – No exceptional circumstances present under Rule (5) – Evidence of police questioning as to possible motive of complainant – No miscarriage of justice – Decision of Callaway, J.A. in R v Arundel [1999] 2 V.R. 228 considered – Grant of leave to cross-examine complainant not appropriate in the circumstances – Whether guilty verdicts regarded as unsafe and unsatisfactory – R v M (1994) 181 C.L.R. 487 – Longman warning given – Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr D.A. Dann	Galbally & O’Bryan

WINNEKE, P.:

I have read the draft reasons which Vincent, J.A. proposes to publish in disposing of this application. I agree, for the reasons given by his Honour, that the application should be dismissed.

VINCENT, J.A.:

The applicant was presented before the County Court on 20 February 2002 on four counts of committing an indecent act with a child under the age of 16 years (counts 1, 2 and 4) and two counts of incest (counts 3 and 5). He pleaded not guilty and a trial was conducted, at the conclusion of which the jury returned verdicts of guilty on counts 1, 2, 4 and 5 and not guilty on count 3.

After hearing a plea in mitigation of penalty, on 3 April 2002, the sentencing judge imposed the following sentences:
On count 1     -          8 months' imprisonment
On count 2     -          12 months' imprisonment
On count 4     -          12 months' imprisonment
On count 5     -          36 months' imprisonment.
He directed that two months of the sentence imposed on count 2 was to be served cumulatively upon that imposed on count 5, thus creating a total effective sentence of imprisonment for 38 months in respect of which a non-parole period of two years and six months was fixed. His Honour further declared that the applicant had been sentenced on counts 4 and 5 as a serious sexual offender.

The applicant now seeks leave to appeal against his conviction on each of the counts on three grounds, namely:

“1.That the learned trial judge erred in failing to grant leave under s.37A of the Evidence Act.
2.That the learned trial judge erred in failing to exclude from evidence question 76 of the record of interview and its answer.
3.That the verdicts of the jury in relation to counts 1, 2, 4 and 5 were unsafe and unsatisfactory.”

The background

The complainant, L, was born on 22 August 1980 and was accordingly 21 years of age at the time of the applicant’s trial.…

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 O'Neill

Details

AGLC: R v O'Neill [2003] VSCA 204
Case: [2003] VSCA 204
Decision Date: 12 December 2003

CaseChat Overview and Summary

The case of R v O'Neill involved the appellant, who was convicted of indecent acts with a child under 16 years and incest. The appellant sought to appeal against both conviction and sentence. The appeal was heard in the Court of Criminal Appeal of Victoria. The appellant contested the trial judge's decision to exclude certain evidence under section 37A of the Evidence Act and argued that the verdicts were unsafe and unsatisfactory.

The legal issues in the appeal centred on the admissibility of evidence under section 37A and whether the exclusion of this evidence led to a miscarriage of justice. The appellant sought to introduce evidence from police questioning that allegedly pertained to the possible motive of the complainant. The court had to determine whether the exclusion of this evidence constituted exceptional circumstances as outlined in Rule 5 of the Evidence Act. Furthermore, the court examined whether the exclusion of this evidence rendered the guilty verdicts unsafe and unsatisfactory, as per the principles established in R v M.

The court found that the exclusion of the evidence did not constitute exceptional circumstances under Rule 5, as it did not meet the criteria set out in R v Arundel. The court emphasised that the evidence was not relevant to the motive of the complainant, nor did it pertain to the credibility of the complainant or the prosecution case. The court also held that the exclusion of the evidence did not result in a miscarriage of justice. The court provided a Longman warning and dismissed the appeal. The appellant's convictions and sentences were upheld.

Orders