R v PFD - [2001] VSCA 198

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 134 of 2000
No. 218 of 2001

THE QUEEN
	v.
P.F.D.

---

JUDGES:	WINNEKE, P., BROOKING, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2001
DATE OF JUDGMENT:	31 October 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 198

---

Criminal law – Conviction and sentence – Rape – Whether acts of physical assault preceding rape admissible – Whether judge erring in failing to discharge jury when evidence of uncharged acts inadvertently elicited in cross-examination – Judge’s directions in relation to evidence of physical assaults adequate in circumstances of case – Significance of failure to take exception – Circumstances in which Court will receive evidence of events occurring subsequent to sentence discussed – Applications dismissed.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr W.H.Morgan-Payler, Q.C.	K.Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.J.Croucher	Michael Brugman

WINNEKE, P.:

In April 2000 a County Court jury at Geelong convicted the applicant of the anal rape of his wife, a young woman of Japanese origin (whom I will call "the complainant"). The conviction was recorded upon a "re-trial" of the applicant which had commenced almost immediately after a jury had been unable to agree upon their verdict at a former trial ("the first trial"). The rape was alleged to have occurred on 5 July 1998 in the bedroom of the house occupied by the applicant and the complainant in a small town near Geelong. It was said to have occurred shortly after a series of physical assaults had been committed by the applicant upon the complainant. These assaults, which were not in contest, were the subject of a count of recklessly causing serious injury, which was the first count on the presentment. The applicant had pleaded guilty in the absence of the jury to these assaults and the trial had proceeded solely on the count of rape which was the subject of count 2 on the presentment. The trial judge sentenced the applicant to 18 months on the first count, namely the reckless infliction of serious injury, and five years' imprisonment on the count of rape. His Honour directed that six months of the sentence imposed on count 1 be served cumulatively upon the sentence imposed for the rape, thus producing a total effective sentence of five-and-a-half years. He ordered the applicant to serve a minimum period of three-and-a-half years before becoming eligible for parole. The applicant had admitted a number of prior convictions between 1987 and 1996, many of which were for unlawful assaults and offensive behaviour.

The applicant seeks leave to appeal against the conviction recorded and the sentences imposed. Before turning to the grounds of appeal, it is desirable to refer briefly to the evidence which formed the basis of the jury's conviction.

The applicant and the complainant had been married for some two years before the events in question. The complainant was some eight years younger than the applicant and was only 18 years at the date…

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 PFD

Details

AGLC: R v P F D [2001] VSCA 198
Case: [2001] VSCA 198
Decision Date: 31 October 2001

CaseChat Overview and Summary

The case of R v PFD involved the appellant who was convicted of the crime of rape. The trial judge, in the County Court of Victoria, assessed the admissibility of evidence pertaining to physical assaults that occurred before the commission of the rape. The appellant argued that the judge erred in not discharging the jury when evidence of uncharged acts was inadvertently introduced during cross-examination. The central legal issues the court had to determine were whether the judge correctly handled the evidence of the physical assaults and whether there was a failure to discharge the jury when uncharged acts were inadvertently elicited.

The court examined whether the judge’s directions to the jury regarding the evidence of physical assaults were adequate in the given circumstances of the case. It was found that the judge’s directions were appropriate, and the appellant’s failure to object to these directions meant that the issue was not preserved for appeal. The court further considered the circumstances under which evidence of events occurring subsequent to the sentence might be received by the court, concluding that such evidence would only be admissible if it was relevant to a matter properly before the court. The appellant’s applications were dismissed as the court found no merit in the claims of judicial error or procedural unfairness.

The reasoning of the court was based on the principle that a failure to object to the judge’s directions can preclude an appellant from later challenging those directions on appeal. Additionally, the court determined that the evidence of physical assaults was relevant and properly admitted, as it provided context to the circumstances surrounding the rape. The court also emphasised the importance of procedural fairness, noting that the appellant had ample opportunity to object to the introduction of the evidence and to request a mistrial if necessary. Ultimately, the court upheld the conviction and sentence, finding no grounds for overturning the trial judge’s decision.

Orders