R v PJO - [2001] VSCA 213

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.297 of 2000

THE QUEEN
	v.
PJO

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JUDGES:	ORMISTON and BUCHANAN, JJ.A. and O’BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 October 2001
DATE OF JUDGMENT:	28 November 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 213

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Criminal law – Sexual offences – Severance of counts – Propensity evidence – Sufficient common elements – Evidence on one count admissible on another count – Evidence of complainants mutually supportive.

Crimes Act 1958, s.398A.

Criminal law – Fitness to be tried – Whether a real and substantial question.

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss.6 and 9.

Criminal law – Comment by trial judge – Did not pose question why would complainant lie.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Pullen	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. T. McIvor	Dwyer Mahon & Robertson

ORMISTON, J.A.:

I have had the benefit of reading the judgment of Buchanan, J.A. in draft form and, for the reasons he expresses, I consider that this application should be dismissed.

BUCHANAN, J.A.:

On 7 August 2000 the applicant, then aged 74 years, was arraigned in the County Court at Warrnambool in respect of nine counts of rape, one count of attempted rape, 14 counts of indecent assault and one count of gross indecency. At the behest of counsel for the applicant the judge before whom the applicant was arraigned embarked upon an investigation into the applicant’s fitness to stand trial pursuant to the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. After hearing evidence and submissions the judge ruled that the applicant was fit to be tried.

Three of the counts alleged indecent assault against a daughter of the applicant. The remaining counts concerned offences alleged to have been committed against five sisters of the applicant’s wife. An application was made on behalf of the applicant to sever the counts on the presentment so that the counts relating to each complainant would be heard separately. The application was granted to the extent that it was ordered that the counts of indecent assault against the applicant’s daughter be severed. Otherwise the application was refused.

The applicant pleaded not guilty to all the counts. The Crown case consisted of the evidence of each of the five sisters. The offences were alleged to have been committed between 3 September 1960 and 31 December 1972. During that time the applicant and his wife lived on a farm at Willaura, a farm near Hamilton and, during the last eight months of the period, at a house in St Arnaud.

Counts 1 to 7 concerned one sister. Counts 1 and 3 alleged indecent assault and counts 2 and 4 to 7 alleged rape. The complainant gave evidence that when she

was about 12 years old her mother sent her to stay with the applicant and his wife during the school holidays. When she visited the shearing shed, the applicant squirted…

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 PJO

Details

AGLC: R v PJO [2001] VSCA 213
Case: [2001] VSCA 213
Decision Date: 28 November 2001

CaseChat Overview and Summary

In the matter of the Crown versus PJO, the defendant was charged with multiple counts of sexual offences. The case was heard by the Supreme Court of Victoria, which had to decide on several legal issues, including whether certain counts should be severed, the admissibility of propensity evidence, and the defendant's fitness to be tried. The court also had to consider whether a comment made by the trial judge was prejudicial.

The court had to determine if the counts were sufficiently similar to warrant severance. It found that there were common elements, such as the use of force and the defendant's intent, which were sufficient to allow evidence from one count to be admissible on another. The court also concluded that the evidence from the complainants was mutually supportive, which further justified the admission of evidence across different counts. Regarding propensity evidence, the court found that the evidence of prior sexual acts was relevant and admissible under section 398A of the Crimes Act 1958, as it was necessary to understand the context and nature of the alleged offences.

On the issue of fitness to be tried, the court considered whether there was a real and substantial question about the defendant's mental state. Under sections 6 and 9 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the court found that there was no such question. The court also examined the trial judge's comment that did not directly ask why the complainant would lie. The court concluded that this comment did not unfairly prejudice the defendant and did not constitute a miscarriage of justice.

The court dismissed the appeal and upheld the conviction. The final orders confirmed the defendant's conviction on all counts and the sentence imposed by the trial court.

Orders