R v P J J - [1998] VSCA 96

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 255 of 1997

THE QUEEN

“P.J.J.”

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JUDGES:	WINNEKE, A.C.J., BROOKING and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 October 1998
DATE OF JUDGMENT:	27 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 96

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Criminal law - Series of sexual offences committed against young girl - Much evidence of “uncharged” criminal conduct - Judge giving careful directions to jury as to “uncharged conduct” - Whether judge in error in failing to give warning in accordance with Longman v. R. (1989) 168 C.L.R. 79 - Circumstances in which such warning should be given discussed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.G. Hillman	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. A. Marshall	Victoria Legal Aid

WINNEKE, A.C.J.:

The applicant, “P.J.J.", is now aged 50 years. He was presented in the County Court at Horsham in September 1997 on four counts of incest and six counts of wilfully committing indecent acts with a child under the age of 16 years to whom he was not married. In each instance the de facto stepdaughter of the applicant ("D.H.") was the complainant. At the time when the offences were alleged to have occurred, namely between 1993 and 1996, the complainant was between the ages of 12 and 15 years. At all material times the applicant was living in a de facto relationship with the complainant's mother ("M.H.") in a small country town in Victoria. Also living in the house which they occupied was the complainant's brother ("A.H.").
The trial, at which the applicant pleaded not guilty to all counts, lasted some six days. During its course the trial judge directed the jury to return verdicts of acquittal in respect of counts 5, 6, 7 and 8, which counts alleged, in the alternative, acts of incest and wilful indecency respectively said to have been committed between 26 and 29 August 1995 and between 30 October and 3 November 1995. The remaining counts which were left for the jury's consideration were:

count 1 - wilful commission of an indecent act between 1 April 1993 and
31 August 1993;
counts 2 and 3 - alternative counts of "digital incest" and indecent act
between 15 and 17 May 1995;

count 4 - indecent act between 15 and 17 May 1995 on an occasion other
than that referred to in counts 2 and 3;
counts 9 and 10 - alternative counts of "oral incest" and indecent act

between 4 March 1996 and 7 March 1996.

On 16 September 1997 the applicant was convicted by the jury of three counts of wilfully committing an indecent act, (counts 3, 4 and 10). He was acquitted of the remaining counts (counts 1, 2 and 9). After calling for a pre- sentence report the trial judge, on 21 November 1997, sentenced the applicant, who had no prior conviction, to terms of imprisonment of three years on each count of which he was convicted and directed that…

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 P J J

Details

AGLC: R v P J J [1998] VSCA 96
Case: [1998] VSCA 96
Decision Date: 27 October 1998

CaseChat Overview and Summary

In the matter of R v P J J, the appellant was convicted of a series of sexual offences committed against a young girl. The trial judge was presented with extensive evidence of uncharged criminal conduct by the appellant. The central issue before the court was whether the judge erred in not providing a warning to the jury regarding the uncharged conduct, as per the principles established in Longman v. R. The court considered the circumstances under which such a warning should be given and whether the judge's failure to do so constituted an error that warranted the appeal.

The court examined the trial judge's directions to the jury concerning the uncharged conduct. It was noted that the judge had given careful directions, emphasising the limited relevance of the uncharged conduct to the jury's deliberations. The court held that the judge's approach was appropriate in the context of the case, as the uncharged conduct was not substantially similar to the charged offences and did not form part of a pattern of criminal behaviour. The court found that the judge had correctly assessed the potential prejudice to the appellant and had balanced it against the probative value of the evidence. Consequently, the court concluded that the judge's failure to provide a specific warning did not amount to a miscarriage of justice.

The reasoning of the court was grounded in the principles established in Longman v. R, which sets out the circumstances under which a warning should be given to the jury regarding uncharged conduct. The court held that such a warning is necessary when there is a significant risk that the jury might convict the accused based on uncharged conduct rather than the evidence presented in relation to the charged offences. In the present case, the court found that the judge's directions adequately mitigated any such risk. The appeal was therefore dismissed, and the convictions were upheld.

No further orders were made by the court beyond dismissing the appeal and upholding the convictions.

Orders