R v WG

Case [2010] VSCA 34 4 March 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 510 of 2009
THE QUEEN	v
WG
THE QUEEN	No 726 of 2007
THE QUEEN	v
WG

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JUDGES	WARREN CJ, NETTLE and ASHLEY JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 February 2010
DATE OF JUDGMENT	4 March 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 34
JUDGMENT APPEALED FROM	(Unreported, County Court of Victoria, Judge Ross, 31 July 2007)

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CRIMINAL LAW – Sexual offences – Jury question – Whether judge failing to respond adequately to jury question that, if jury believed complainant’s evidence to be plausible, that was beyond reasonable doubt – R v Cavkic, Athanasi and Clarke [No 2] [2009] VSCA 43, referred to.

CRIMINAL LAW – Evidence – Whether judge’s failure to comply strictly with s 23(1D) of Evidence Act 1958 vitiated conviction – R v BIC [2009] VSCA 155, considered; R v Brooks (1998) 44 NSWLR 121, distinguished, Evidence Act 1958, s 23(1D).

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Appearances:	Counsel	Solicitors
For the Crown	Mr G J C Silbert, SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce with Mr Keir Dernelley	Victoria Legal Aid

WARREN CJ
NETTLE JA
ASHLEY JA:

The applicant was presented for trial in the County Court on two presentments preferring multiple counts of sexual offences and was tried separately on each presentment. Following trial on Presentment TO1598426.4 (‘the first presentment’), he was convicted of seven counts of incest (Counts 1, 2, 4, 6 8 and 10) and three counts of gross indecency (Counts 3, 5 and 9). Following trial on the Presentment Number TO1598426.2 (‘the second presentment’), he was convicted of one count of indecent act with a child (Count 1) and two counts of incest (Counts 2 and 3).

After hearing a plea in mitigation of penalty, on 31 July 2007 the judge sentenced the applicant on the counts the subject of the first presentment: on each of Counts 1, 2 and 10 to three years’ imprisonment; on each of Counts 3, 5 and 9 to one year’s imprisonment; on Count 4 to six years’ imprisonment; and on each of Counts 6 and 8, to seven years’ imprisonment, with one year of the each of the sentences imposed on Counts 4 and 10 to be served cumulatively on each other and on the sentence imposed on Count 6. That made for a total sentence for the counts the subject of the first trial of nine years’ imprisonment.

On the same day the judge sentenced the applicant on the counts the subject of the second presentment: on Count 1 to one year’s imprisonment and, on each of Counts 2 and 3 to two years’ imprisonment, and ordered that six months of the sentence imposed on Count 1 be served cumulatively on the sentence imposed on Count 3. That made for a total sentence for the counts the subject of the second presentment of two years and six months’ imprisonment. His Honour further ordered that the total sentence of two…

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 WG

Details

AGLC: R v WG [2010] VSCA 34
Case: [2010] VSCA 34
Decision Date: 4 March 2010

CaseChat Overview and Summary

In the case of R v WG, the defendant stood accused of sexual offences and the case was heard in a court of appeal. The central issue revolved around whether the trial judge had adequately addressed a question posed by the jury regarding the sufficiency of the complainant's evidence to establish guilt beyond reasonable doubt. This concern was raised in light of the case R v Cavkic, Athanasi and Clarke [No 2] [2009] VSCA 43, which had previously set a precedent on how such questions should be handled. Additionally, the court examined whether the trial judge's deviation from the strict requirements of section 23(1D) of the Evidence Act 1958 had invalidated the conviction, a matter that drew on the reasoning in R v BIC [2009] VSCA 155 and the case of R v Brooks (1998) 44 NSWLR 121.

The legal issues before the court required careful consideration of the principles underpinning jury direction and the statutory obligations imposed by section 23(1D) of the Evidence Act 1958. The court needed to determine whether the judge's response to the jury's question met the necessary standard to ensure a fair trial and whether any deviation from the statutory requirements was so significant as to warrant overturning the conviction. The court considered the importance of adhering to the provisions of the Evidence Act to maintain the integrity of the judicial process and the potential impact of non-compliance on the defendant's right to a fair trial.

The court found that the trial judge's response to the jury's question, while perhaps not perfect, did not fall short of the standard required to ensure a fair trial. The court held that the judge's direction was sufficient to guide the jury in their deliberations and that any minor shortcomings did not prejudice the defendant's right to a fair trial. Furthermore, the court determined that the judge's failure to comply strictly with section 23(1D) of the Evidence Act 1958 did not vitiate the conviction, as the essence of the statutory requirement had been met, and the error did not impact the outcome of the trial. The appeal was therefore dismissed.

The court did not deem it necessary to make any further orders beyond the dismissal of the appeal, affirming the conviction of the defendant as originally decided by the lower court. The decision underscores the importance of adhering to legal principles in jury instructions and the statutory obligations of the Evidence Act, while also highlighting the court's discretion in assessing whether non-compliance with these requirements is sufficiently prejudicial to warrant overturning a conviction.

Orders