R v RJR - [2005] VSCA 315

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	Nos. 88 and 89 of 2004
	v.
R.J.R.

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JUDGES:	ORMISTON and VINCENT, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	8 & 9 March 2005
DATE OF JUDGMENT:	21 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 315

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Criminal Law – Applications for leave to appeal against convictions and sentences – Two trials in which the applicant was accused – First trial convictions of rape and false imprisonment – Second trial convictions of committing an indecent act with a child under 16 years and of making a threat to kill – Complaint evidence – Threat to kill – Comments by judge in her charge as to defence submissions not unfair or excessive – Verdicts not unreasonable – Sentences not excessive – Applications for leave to appeal against convictions and sentences dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorrfy	Mr S. Carisbrooke, Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C.	Clarebrough Pica

ORMISTON, J.A.:

In each of these applications I agree, for the reasons stated in the judgment to be delivered by Cummins, A.J.A., that they should be dismissed.

Only one matter has concerned me, namely, the misdirection as to the use of the victim’s history as related to her doctor. It was wrong to say, in unqualified terms, that those parts of the history given to the doctor which were adopted by her as true becomes part of the evidence before the jury at the trial, without making clear that mere repetition by that form of adoption cannot be used to bolster the prosecution case. In other words the jury should have been told that mere adoption as true of what she had said to the doctor could not be used by the jury to confirm the account in her evidence of what took place. In the present case the jury were told clearly enough that the history given to the doctor could not in itself be used to support the prosecution case and the problem is only with the proper use of the material which in the course of evidence the victim adopted from that history as true and which thus became in the judge’s terms “part of her evidence in this court to be evaluated by you in the same way as any other evidence”. But the adoption, to the extent that there was any such adoption, did not come as part of examination-in-chief but by reason of cross-examination on behalf of the applicant. Thus the essence of what was being put by counsel for the applicant at that time was that the victim had made a number of inconsistent statements to the doctor and it was essentially the inconsistent parts of that story which counsel sought to have the witness adopt as true. To an extent counsel was successful. But the essence was that those parts conflicted to a greater or lesser extent with what she had said in…

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 RJR

Details

AGLC: R v R J R [2005] VSCA 315
Case: [2005] VSCA 315
Decision Date: 21 December 2005

CaseChat Overview and Summary

The case before the court was an application for leave to appeal against both convictions and sentences by the applicant, who had been tried in two separate trials. In the first trial, the applicant was convicted of rape and false imprisonment. The second trial resulted in convictions for committing an indecent act with a child under 16 years and making a threat to kill. The applicant sought to challenge the validity of the verdicts, contending that the evidence presented was unreliable and the judge's comments during the charge to the jury were prejudicial. Additionally, the applicant argued that the sentences imposed were excessively harsh.

The legal issues before the court encompassed whether the evidence, particularly the complainant's testimony, was sufficiently reliable to support the convictions. The court also had to consider whether the judge's remarks during the charge to the jury were unfair or excessive and if they could have influenced the jury's decision. Furthermore, the court examined whether the verdicts were unreasonable in the circumstances and whether the sentences were disproportionate to the crimes committed.

In assessing these issues, the court determined that the evidence provided was reliable and the judge's comments were neither unfair nor excessive. The court found that the verdicts were not unreasonable, given the evidence presented. Moreover, the court concluded that the sentences were appropriate and not excessive in light of the gravity of the offences. Consequently, the applications for leave to appeal against both the convictions and sentences were dismissed.

The final orders of the court were to deny the applicant leave to appeal against the convictions and sentences from both trials. The court held that the evidence was sufficient to support the verdicts and that the sentences were proportionate to the crimes committed. The court also confirmed that the judge's comments did not unfairly prejudice the applicant's case.

Orders