R v Van Doorn - [2004] VSCA 65

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 322 of 2001

THE QUEEN
	v.
PETER VAN DOORN

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JUDGES:	WINNEKE, P., VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 December 2003
DATE OF JUDGMENT:	14 May 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 65

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Criminal law – Sexual offences against young girls – Applicant unrepresented and electing to present arguments against conviction by written material without attending hearing of application – Whether incriminating statements made in police instigated telephone calls by complainants inadmissible on grounds of unfairness and contrary to public policy – Whether verdicts unsafe and unsatisfactory or perverse in that they were inconsistent – No error in judge’s directions as to evidence of corroboration – Judge’s directions on “similar fact” evidence unexceptional but irrelevant and in favour of applicant – No error in “propensity warning” and failure to give “Longman warning”.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G.J.C. Silbert	K.Robertson, Solicitor for Public Prosecutions
For the Applicant	Case and argument presented in writing by Applicant

WINNEKE, P.:

In October 2001 a County Court jury at Morwell convicted the applicant, Peter Van Doorn, who is now aged 70 (whom I will call “the applicant”), of 14 counts on a 23 count presentment alleging against him various offences of a sexual character against three children who, at the time of offending, were 14 years of age. The age of the children, and the fact that they were not married to the applicant were not in dispute, having been conceded at trial. The trial judge had directed an acquittal on counts 16, 17, 18, 19, 20 and 22 for want of evidence, and by agreement. The jury returned verdicts of not guilty on counts 1, 2 and 11. Eleven of the counts upon which the applicant was found guilty alleged offences of taking part in an act of sexual penetration with a child under the age of 16 years contrary to s.45 of the Crimes Act 1958 (Vic.); and the remaining three counts in respect of which convictions were recorded alleged offences of committing an indecent act with or in the presence of a child under the age of 16 years contrary to s.47 of the Act (counts 5, 13 and 23). There were three victims or complainants of the conduct alleged against the applicant. I will call them respectively “K.B.”, “J.S.” and “C.L.”. Of the 14 counts of which the applicant was convicted, nine of them alleged offences against K.B., four against J.S. and one against C.L.

On 10 December 2001 the trial judge, after entertaining a plea in mitigation on behalf of the applicant, sentenced him to nine months’ imprisonment on each of counts 5, 13 and 23 (the offences of “indecent act”) and one year on each of the other counts (the “sexual penetration” counts). After making orders for cumulation, the total effective sentence imposed by his Honour was five years and nine months; he fixed a non-parole period of three years…

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 Van Doorn

Details

AGLC: R v Van Doorn [2004] VSCA 65
Case: [2004] VSCA 65
Decision Date: 14 May 2004

CaseChat Overview and Summary

The case of R v Van Doorn was heard in an unspecified court where the applicant, Van Doorn, was appealing his convictions for sexual offences against young girls. Van Doorn, who elected to be unrepresented and presented his arguments against the conviction solely through written submissions without appearing at the hearing, challenged the admissibility of incriminating statements made by the complainants during police-instigated telephone calls. He argued that these statements were inadmissible on grounds of unfairness and contrary to public policy. Furthermore, Van Doorn contended that the verdicts were unsafe and unsatisfactory, suggesting they were inconsistent.

The legal issues before the court included whether the incriminating statements made by the complainants during police-instigated telephone calls were admissible and whether the verdicts were so inconsistent as to render them unsafe and unsatisfactory. The court also examined the judge’s directions concerning the evidence of corroboration and the handling of “similar fact” evidence, as well as the appropriateness of the “propensity warning” and the omission of the “Longman warning”.

In its reasoning, the court found no error in the judge’s directions regarding the evidence of corroboration. The court considered the judge’s directions on “similar fact” evidence to be unexceptional and irrelevant to the applicant’s favour. Additionally, the court held that there was no error in the “propensity warning” and determined that the failure to give the “Longman warning” was not prejudicial. The court concluded that the incriminating statements were properly admitted and that the verdicts, while perhaps difficult, were not unsafe or unsatisfactory. The appeal was thus dismissed.

Orders