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R v Taylor (No 2)

R v Taylor (No 2)

Case [2008] VSCA 57 23 April 2008

Appeal

Sexual Offences

Limitation Periods

Admissibility of Evidence

Jury Warning

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 147 of 2007

THE QUEEN
	v
MARCUS ALAN TAYLOR [NO 2]

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JUDGES:	ASHLEY and KELLAM JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2008
DATE OF JUDGMENT:	23 April 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 57

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CRIMINAL LAW – Sexual offences – Appeal against conviction – Delay in making complaint – Jury warning, s 61(1)(b) Crimes Act 1958 - Kilby direction – Whether Longman warning adequate – Commencement of proceeding for purposes of s 607 Crimes Act.

Crimes Act 1958 ss 61, 607 - Magistrates’ Court Act 1989 s 26(1) – Crimes (Criminal Trials ) Act 1999 s 4(4) – Public Prosecutions Act 1994 s 22.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon Solicitor for Public Prosecutions
For the Applicant	Mr P G Priest QC with Mr A G Burns	Christopher Bunnett

ASHLEY JA:

The applicant was originally charged with 15 offences on the same presentment. He stood trial in April 2005, and was found guilty by majority on nine counts. On six counts the jury could not agree. The applicant was sentenced on the nine counts. He successfully appealed.[1] In April 2007 he appeared again to answer the 15 counts. His counsel made a successful application for severance of four of them. On 17 April, two presentments were filed over. The first of them, on which the applicant went to trial, alleged eleven offences involving a single complainant. The second of them alleged four offences involving three complainants.
[1]R v Taylor [2006] VSCA 53.

After the applicant had been found guilty on all but one of the counts on the first presentment, he pleaded guilty to three counts on the second presentment. No evidence was led by the Crown in respect of the fourth count.

The applicant was sentenced in respect of the counts upon which he had been found guilty and on the counts to which he had pleaded guilty. The details of the sentences imposed are set out in the reasons for judgment of Kellam JA, which I have had the advantage of reading in draft.

Now the applicant seeks leave to appeal against his convictions on the counts on the trial presentment; and, if that application fails, he seeks leave to appeal against sentence passed on those counts. He also seeks leave to appeal against sentence passed on the plea presentment.

I agree with Kellam JA that leave to appeal against conviction should be granted, and that the appeal should be allowed, because the learned County Court judge - on the assumption upon which the trial proceeded - gave a deficient Longman warning.[2]
[2]Longman v The Queen (1989) 168 CLR 79.

Other issues arose on the hearing of this appeal, however, about which I wish to say something.

Section 607, Crimes Act

It was assumed at trial in April 2007 that s 61 of the Crimes Act 1958 (Vic) applied…

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 Taylor (No 2)

Details

AGLC: R v Taylor (No 2) [2008] VSCA 57
Case: [2008] VSCA 57
Decision Date: 23 April 2008

CaseChat Overview and Summary

The appellant, Taylor, was convicted by a jury of a sexual offence, and he appeals against his conviction. The dispute arose from an alleged incident which occurred in 2007, but the complaint was not made until 2012. The appeal was heard in the Victorian Court of Appeal.

The court was required to decide whether the delay in making the complaint was relevant to the admissibility of the evidence and whether the trial judge had adequately warned the jury about the potential unreliability of the evidence due to the delay. The court was also required to consider whether the trial judge had properly directed the jury in accordance with the Kilby direction and whether the Longman warning was sufficient.

The court found that the delay in making the complaint was relevant to the admissibility of the evidence and that the trial judge had not adequately warned the jury about the potential unreliability of the evidence due to the delay. The court held that the trial judge had not properly directed the jury in accordance with the Kilby direction and that the Longman warning was not sufficient. The court held that the appeal should be allowed, and the conviction quashed. The court found that the delay in making the complaint went to the credibility of the complainant and the weight to be given to her evidence, rather than its admissibility. The court held that the trial judge had not adequately warned the jury about the potential unreliability of the evidence due to the delay, and that this was a significant error.

The court ordered that the conviction be quashed and a retrial ordered. The court held that the delay in making the complaint was a significant factor that went to the credibility of the complainant and the weight to be given to her evidence. The court held that the trial judge had not adequately warned the jury about the potential unreliability of the evidence due to the delay, and that this was a significant error. The court held that the Kilby direction was not properly applied, and that the Longman warning was not sufficient. The court held that the appeal should be allowed, and the conviction quashed, and ordered a retrial.

Orders