R v Pidoto - [2009] VSCA 166

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 815 of 2007

THE QUEEN
	v
TERRENCE MELVILLE PIDOTO

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JUDGES:	BUCHANAN, VINCENT and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 June 2009
DATE OF JUDGMENT:	27 July 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 166
JUDGMENT APPEALED FROM:	R v Pidoto (Unreported, County Court of Victoria, Judge Howie, 17 September 2007)

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CRIMINAL LAW – Conviction – Buggery – Rape by anal penetration – Indecent assault on a male person under the age of 16 – Gross indecency – Assault occasioning actual bodily harm – Whether there was procedural unfairness – Whether jury direction adequate if the date in the presentment is incorrect – Mental state of the complainant – Whether there was a miscarriage of justice – Severance – Uncharged acts – Whether conviction unsafe and unsatisfactory – HML v R; SB v R; OAE v R (2008) 235 CLR 334 – R v Sadler [2008] VSCA 198 – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr R A R Lewis	Lethbridges

BUCHANAN JA
VINCENT JA
DODDS-STREETON JA:

The applicant was, on 18 July 2007, found guilty by a jury in the County Court on one count of buggery (count 8), one of rape by anal penetration (count 19), three of indecent assault on a male person under the age of 16 years (counts 5, 6 and 7), four of indecent assault (counts 11, 16, 20 and 22), one of committing an act of gross indecency (count 15), and one of assault occasioning actual bodily harm (count 10).[1] The charges involved four young males to whom we will refer as J, D, C and S.
[1]He was acquitted on counts 1, 2, 3, 4, 9, 12 and 14 which related to allegations of a generally similar character involving another three other persons between December 1972 and September 1981.
On each of counts 17, 18 and 21 the applicant was acquitted upon the direction of the trial judge following a successful submission by the applicant’s counsel that there was no case to answer.

He now seeks leave to appeal against his conviction on each count on the grounds that:

1.He suffered a procedural unfairness insofar as he was unfairly embarrassed by the impossibility of defending the allegations by J of offences that could not have occurred at the time that the complainant alleged.
2.His Honour Judge Howie erred in not discharging the jury in respect of counts 6, 7 and 8 after evidence was led that the offences alleged by J occurred in 1973 but that the Corpus Christi Seminary closed at the beginning of 1973.
3.Having regard to the evidence on Counts 6, 7 and 8 His Honour Judge Howie erred in directing the jury that it was not fatal to the prosecution case if the date (in the presentment) is incorrect.
4.His Honour Judge Howie erred in not ordering that the…

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 Pidoto

Details

AGLC: R v Pidoto [2009] VSCA 166
Case: [2009] VSCA 166
Decision Date: 27 July 2009

CaseChat Overview and Summary

The case of R v Pidoto involved the appellant, who was convicted of various criminal offences including buggery, rape by anal penetration, indecent assault on a male person under the age of 16, gross indecency, and assault occasioning actual bodily harm. The matter was heard in the Court of Appeal. The appellant challenged his conviction on several grounds, including the adequacy of the jury direction, the accuracy of the date in the presentment, the mental state of the complainant, and whether there was a miscarriage of justice. The appellant also argued that the trial judge should have severed certain counts and that the admission of uncharged acts led to an unsafe and unsatisfactory conviction.

The court was required to decide whether there was procedural unfairness in the trial, whether the jury direction was adequate despite the incorrect date in the presentment, and whether the mental state of the complainant was properly considered. The court also had to determine if there was a miscarriage of justice due to the severity of the charges and the appellant's mental state. Additionally, the court needed to assess whether the trial judge should have severed certain counts and whether the admission of uncharged acts led to an unsafe and unsatisfactory conviction.

The court dismissed the appeal, finding that there was no procedural unfairness in the trial. The court held that the jury direction was adequate, despite the incorrect date in the presentment, as it did not lead to a miscarriage of justice. The court also found that the mental state of the complainant was properly considered and did not affect the safety of the conviction. The court held that the trial judge was not required to sever the counts, and the admission of uncharged acts did not lead to an unsafe and unsatisfactory conviction. The court referred to previous cases such as HML v R, SB v R, OAE v R, and R v Sadler to support its decision.

The appeal was dismissed, and the convictions were upheld. The court found no basis for overturning the trial judge's decisions and concluded that the appellant's convictions were safe and satisfactory.

Orders