R v P Z G - [2007] VSCA 54

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 163 of 2005
	v
PZG

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JUDGES:	VINCENT and REDLICH JJA and KELLAM AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 January 2007
DATE OF JUDGMENT:	2 April 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 54

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CRIMINAL LAW – Application for leave to appeal against conviction on counts of incest and indecent acts with a child – Evidence of uncharged acts – Adequacy of warning to jury – Propensity warning given in accordance with R v Grech [1997] 2 VR 609 before evidence of uncharged acts led – Whether warning needed to be repeated in charge – Desirability of directions and warnings at an earlier stage in the trial – Warning adequate – No need to repeat the propensity warning – Verdict not unreasonable or unsupportable on the evidence – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P A Coghlan QC, DPP with Mr C B Boyce	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr G M Hughan	Victoria Legal Aid

VINCENT JA
REDLICH JA
KELLAM AJA:

On 11 May 2005 the applicant was arraigned before the County Court at Geelong and pleaded not guilty to six counts of incest and four counts of committing an indecent act with a child. At the conclusion of the Crown’s case the jury entered verdicts of not guilty at the direction of the trial judge on three of the counts of incest and on two of the counts of committing an indecent act with a child under 16. On 14 May 2005 the jury returned a verdict of guilty on the remaining counts on the presentment, namely three counts of incest and two counts of committing an indecent act with a child under 16. After a plea in mitigation the applicant was sentenced to six years and six months’ imprisonment with a non-parole period of three years and six months. The applicant seeks leave to appeal against his conviction on three grounds.

It is necessary to summarize some of the evidence upon which the Crown relied at the trial before turning to the grounds of appeal. The Crown alleged that the applicant committed a number of sexual offences against his daughter, the complainant, between 1 January 1999 and 7 June 2002 when she was between 11 and 15 years of age. At the time of the trial the complainant was 17 years of age and was on a disability pension due to learning difficulties. In April 1996 the complainant and her younger brother, AD, went to live with the applicant and her step-mother, DP, in Whittington. DP subsequently gave birth to two children, TP and MP who resided at the family home. The complainant initially resided in the bedroom next to the applicant’s bedroom but later resided in a caravan in the backyard which she occupied for 12 months before being placed into foster care as a result of a complaint of sexual abuse which she made…

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 Z G

Details

AGLC: R v P Z G [2007] VSCA 54
Case: [2007] VSCA 54
Decision Date: 2 April 2007

CaseChat Overview and Summary

The case before the court involved an application by the accused, PZ G, seeking leave to appeal against his conviction on multiple counts of incest and indecent acts with a child. The applicant's argument centred on the adequacy of the warning given to the jury regarding the use of evidence of uncharged acts. The application was heard in the Supreme Court of Victoria.

The central legal issue the court had to address was whether the initial warning provided to the jury, in line with the principles established in R v Grech, was sufficient, or if it was necessary to repeat the warning at the time the evidence of uncharged acts was presented. The applicant contended that the warning was inadequate and that its repetition was necessary to prevent prejudice. The court needed to determine whether the initial warning was adequate and whether there was a requirement to repeat the warning at a later stage in the trial.

The court examined the principles established in R v Grech, which hold that a warning about the potential for evidence of uncharged acts to be used for purposes other than proving propensity is necessary. The court found that the initial warning provided to the jury was adequate and aligned with the principles set out in Grech. It was held that there was no need to repeat the warning at a later stage in the trial. The court considered the overall fairness of the trial and concluded that the verdict was not unreasonable or unsupportable on the evidence presented. Consequently, the application for leave to appeal was refused.

Orders