R v R W - [2008] VSCA 79

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 315 of 2006
No 316 of 2006

THE QUEEN
	v
RW

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JUDGES:	VINCENT, NEAVE and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2008
DATE OF JUDGMENT:	16 May 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 79

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CRIMINAL LAW – Applications for leave to appeal against convictions for rape, indecent assault of a child under 16 and two counts of indecent assault – Alleged offences occurred between 27 and 30 years ago and involved two complainants – Two separate trials –Longman warning in both trials inadequate – Appeal allowed and convictions on all counts set aside – Convictions for rape and indecent assault sustained in the first trial not unsafe and unsatisfactory – Re-trials ordered.

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APPEARANCES:	Counsel	Solicitors
The Crown	Ms M M Williams SC with Mr C B Boyce	Miss A Cannon, Solicitor for Public Prosecutions
The Applicant	Mr D Just	Victoria Legal Aid

VINCENT JA:

I agree in the disposition of these matters as proposed by Neave JA and I do so substantially for the reasons advanced by her in her judgment.

NEAVE JA:

On 8 May 2006, in ‘the first trial’, the applicant, RW, was convicted by a County Court jury of one count of indecent assault of a child under 16 (count 3) and one count of rape (count 7). He was acquitted, by direction, of another count of indecent assault of a child under 16 (count 6). The first trial related only to the complainant PS. On 23 May 2006, in ‘the second trial’, the applicant was convicted by another County Court jury of two counts of indecent assault (counts 2 and 5) involving a different complainant, NK.[1]
[1]The count numbers used throughout this judgment are those used in the presentment and in the learned sentencing judges remarks. Because the presentment included counts involving five complainants and there was an order for severance (meaning the trials relating to each of those complainants were conducted separately), the counts were described during each of those trials by new count numbers (for example, counts 3, 6 and 7 on the presentment were referred to as counts 1, 2 and 3 during the first trial, and counts 2 and 5 on the presentment were referred to as counts 1 and 2 during the second trial). For the purposes of consistency within this judgment, references in the trial transcripts and in counsels’ submissions to counts 1, 2 and 3 have been changed to correspond with the count numbers used in the presentment.

The applicant was sentenced by a judge of the County Court for the offences the subject of the first and second trials (ie. counts 3 and 7, and counts 2 and 5) at the same time. The learned sentencing judge sentenced the applicant to a total effective sentence of six years and three months, with a non parole period of four years and six months.

The applicant now seeks leave to appeal against his convictions…

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 R W

Details

AGLC: R v R W [2008] VSCA 79
Case: [2008] VSCA 79
Decision Date: 16 May 2008

CaseChat Overview and Summary

In the case of R v R W, the appellant challenged his convictions for multiple offences, including rape and indecent assault of a child under 16, as well as two counts of indecent assault. The alleged offences took place between 27 and 30 years prior and involved two separate complainants. The appellant underwent two distinct trials, which culminated in his convictions. The matter was heard in the High Court of Australia, where the appellant sought leave to appeal against his convictions.

The primary legal issues that the court had to address were whether the trial judge's warnings regarding the difficulties in relying on evidence from a long time ago were adequate, and whether the appellant's convictions were unsafe and unsatisfactory. The court also considered whether the convictions for rape and indecent assault, as well as the two counts of indecent assault, should be set aside and whether the appellant should be granted a re-trial. The appellant argued that the warnings issued by the trial judge were insufficient, and that the evidence was not reliable due to the significant passage of time since the alleged offences.

The court determined that the Longman warning provided in both trials was inadequate and did not sufficiently alert the jury to the potential pitfalls in relying on evidence from a distant past. The court found that the appellant's convictions for rape and indecent assault, as well as two counts of indecent assault, were not unsafe and unsatisfactory. However, due to the insufficiency of the Longman warning, the court allowed the appeal and set aside the convictions. The court ordered re-trials for the appellant, as the inadequate warnings could have potentially affected the outcome of the trials.

The final orders of the court were that the appeal was allowed, the convictions on all counts were set aside, and the appellant was granted re-trials for the charges of rape, indecent assault of a child under 16, and two counts of indecent assault. The court's decision highlighted the importance of providing adequate warnings to juries when dealing with cases that involve evidence from a significant period in the past.

Orders