R v VN

Case [2006] VSCA 111 29 May 2006

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 78 of 2005

THE QUEEN
	v.
VN

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JUDGES:	MAXWELL, P., BUCHANAN and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 February 2006
DATE OF JUDGMENT:	29 May 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 111

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CRIMINAL LAW – Conviction – Incest – Indecent assault – Admissibility of evidence of uncharged acts – Observations by complainant’s brother of applicant regularly in complainant’s bed – whether propensity or relationship evidence – Failure by trial judge to advert to s.398A – Whether “just” to admit evidence.

CRIMINAL LAW – Evidence – Admissibility of evidence of uncharged acts subsequent in time to acts charged – Adequacy of direction on evidence of uncharged acts.

CRIMINAL LAW – Evidence – Testimony by affirmation – Cross-examination as to accused’s failure to take oath – Whether breach of s.102 of Evidence Act 1958.

CRIMINAL LAW – Accused’s testimony – Lies told in court – Denial during course of testimony of facts asserted by other witnesses – No necessity for Edwards direction.

CRIMINAL LAW – Procedure where count bad for latent duplicity – Course of trial following directed acquittals at conclusion of Crown case – Consequences of a conviction based upon count bad for latent duplicity – Whether evidence in support of counts on which a directed acquittal admissible on remaining counts – Whether plea of autrefois acquit available – Whether use of evidence controverts acquittals.

CRIMINAL LAW – Motive to lie – Direction as to absence of motive by witness to lie.

CRIMINAL LAW – Indecent assault – Consent – Mens Rea – Whether directions required as to consent or mens rea when not live issues – No direction called for if factual findings not open on evidence.

CRIMINAL LAW – Summarising of addresses by counsel in charge – Whether trial judge sufficiently related evidence to the issues.

CRIMINAL LAW – Sentence – Incest and indecent assault arising out of same conduct – Whether full cumulation appropriate – Manifest excess – Applicant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M.J. Croucher	Galbally Rolfe
For the Crown	Mr O.P. Holdenson, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

MAXWELL, P.:

I have had the considerable advantage of reading in draft the reasons for judgment of Redlich JA. I agree that the applications should be disposed of in the manner proposed by his Honour, for the reasons he gives.

BUCHANAN, J.A.:

I agree with Redlich, JA.

REDLICH, J.A.:

The applicant was presented on nine counts alleging different sexual offences by the applicant against his daughter between 20 October 1972 and 30 April 1988. During that period the applicant’s daughter was between the ages of 3 and 18 years. The applicant pleaded not guilty to all counts. Following the close of the Crown case, no case submissions were made after which verdicts of not guilty by direction were entered with respect to 5 of the counts. On 27 January 2005 the applicant was found guilty by the jury…

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 VN

Details

AGLC: R v VN [2006] VSCA 111
Case: [2006] VSCA 111
Decision Date: 29 May 2006

CaseChat Overview and Summary

The case of R v VN involves the appellant, VN, who was convicted of incest and indecent assault. The dispute centres on the admissibility and impact of various pieces of evidence, including observations by the complainant’s brother, testimony by affirmation, and the appellant’s failure to take an oath. The High Court of Australia reviewed the case to determine the correctness of the trial judge's decisions and the overall fairness of the trial.

The central legal issues addressed by the court were whether the evidence of uncharged acts was properly admitted under the relevant sections of the Evidence Act and whether the trial judge's directions to the jury were adequate. The court also examined whether the appellant’s testimony, which included lying under oath, warranted specific directions to the jury and whether the trial judge adequately related the evidence to the issues at hand. Additionally, the court considered the appropriate sentence for the crimes of incest and indecent assault arising from the same conduct, deliberating on whether full cumulation was justified and whether the sentence was manifestly excessive.

In its reasoning, the court found that the trial judge had failed to properly apply the relevant sections of the Evidence Act when admitting evidence of uncharged acts, which was a significant error. The court noted that the trial judge did not sufficiently direct the jury on the appropriate use of evidence of uncharged acts and that the appellant’s failure to take an oath did not necessitate a specific direction to the jury. The court also concluded that no Edwards direction was required as the appellant's lies did not form part of the live issues. Furthermore, the court found that the trial judge’s summing up did not adequately relate the evidence to the issues, but this did not prejudice the appellant’s case. Finally, the court addressed the sentencing, finding that full cumulation was appropriate but the original sentence was manifestly excessive and thus, the appellant was re-sentenced.

The court’s final orders included a quashing of the convictions on certain counts, a re-sentencing of the appellant, and directions for the lower court to consider the appropriate sentence for the remaining counts, taking into account the re-sentencing and the principles of cumulative sentencing.

Orders