R v T W K - [2003] VSCA 225

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 328 of 2001

THE QUEEN
	v.
T.W.K.

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JUDGES:	CALLAWAY and BATT, JJ.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 December 2003
DATE OF JUDGMENT:	8 December 2003
DATE OF REASONS:	9 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 225

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CRIMINAL LAW – Indecent assaults on sister in 1968 and 1969 – Applicant not interviewed until 1997 – Longman warning insufficient – Nolle prosequi already entered to counts on which jury could not agree – Acquittal entered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.G. Perry	Nicholas O’Donohue & Co.

CALLAWAY, J.A.: In this appeal the Court made orders yesterday for reasons to be given today. I invite Batt, J.A. to give the first reasons.

BATT, J.A.:

The applicant was born on 26 October 1953. On 18 December 2001, after a trial which (omitting preliminary argument and rulings) commenced on 4 December 2001, he was found guilty by a jury in the County Court at Melbourne of three counts of indecent assault upon the elder of his two sisters, whom I shall call “the complainant”. They were counts 1, 2A and 4. The jury also found the applicant not guilty on two counts of indecent assault of his younger sister and two counts alleging incest with her. The jury were unable to reach a verdict on the remaining counts, which alleged attempted buggery with and indecent assault of the complainant, and indecent assault (two counts) and carnal knowledge of the younger sister and buggery with her. A nolle prosequi was subsequently entered in relation to those remaining counts. The jury had earlier acquitted the applicant by direction of one count of carnal knowledge of the complainant and one count of indecent assault of the younger sister. Two of the indecent assaults of which the applicant was found guilty were alleged to have occurred between 1 January 1968 and 31 December 1968 and the other was alleged to have occurred between those days in the following year, 1969. The most recent offence alleged on the presentment, of which the applicant was acquitted, was stated to have occurred between 11 December 1976 and 11 December 1977. The applicant was not interviewed by police until 5 June 1997. He was not charged until 5 July 1999.

The maximum penalty for indecent assault at the time of the offending was imprisonment for five years. The applicant had no prior convictions. After hearing a plea in mitigation of penalty on 18 December 2001, during which medical reports relating to the applicant and a victim impact statement by the complainant were tendered, his Honour on 20 December convicted the applicant and fined him $1,000 on each of the three counts.

On 24 December 2001 the applicant filed notices of application for leave to appeal against conviction and against sentence. The notice relating to conviction contained eight grounds of appeal of which…

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 T W K

Details

AGLC: R v T W K [2003] VSCA 225
Case: [2003] VSCA 225
Decision Date: 9 December 2003

CaseChat Overview and Summary

In the case of R v T W K, the applicant was charged with indecent assaults on his sister in 1968 and 1969. The case was heard in a relevant court, where the central issue was whether the applicant was adequately cautioned before giving evidence, specifically whether the Longman warning was sufficient in the circumstances. The applicant was not interviewed by authorities until 1997, long after the alleged incidents. The court was required to determine if the delay in interviewing and the adequacy of the warning given before the applicant testified affected the fairness of the trial.

The court examined the legal principles surrounding the necessity of warnings to a defendant prior to giving evidence, particularly in relation to the Longman warning, which is a warning given to defendants about the potential consequences of not answering questions put to them in court. The court had to consider whether the warning was appropriate given the applicant's age at the time of the offences and the significant delay before he was interviewed by authorities. Additionally, the court had to address the procedural issue of the nolle prosequi that had been entered on counts where the jury could not reach a unanimous decision. The court concluded that the warning provided was insufficient given the circumstances, and that the delay in interviewing and the insufficiency of the warning rendered the applicant's evidence unreliable.

As a result of the court's findings, the applicant was acquitted on all counts. The court's decision hinged on the conclusion that the Longman warning was inadequate and that the delay in obtaining the applicant's statement compromised the fairness of the proceedings. Consequently, the applicant was acquitted, and the court entered a formal acquittal on the relevant counts. This decision underscores the importance of timely and adequate warnings in criminal trials to ensure the fairness and integrity of the judicial process.

Orders