R v Z W - [2006] VSCA 256

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 194 of 2005

THE QUEEN
	v.
Z.W.

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JUDGES:	VINCENT, EAMES & REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 October 2006
DATE OF JUDGMENT:	1 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 256

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Criminal Law – Conviction – Indecent assault – Gross indecency – Committing an indecent act with a child under the age of 16 years – Offences committed against applicant’s two daughters and the daughter of his de facto – Whether applicant’s trial prejudiced by trial judge’s failure to sever counts relating to each victim – Cross-admissibility of evidence – Voluntariness – Cross-examination of applicant’s failure to call certain witnesses – Whether trial judge erred in failing to direct the jury that they should not speculate about what a person not called by the applicant might have said – Failure of applicant’s counsel to put various matters to the prosecution witness – Miscarriage of justice – Whether trial judge erred in failing to exclude the covert tape recorded interview between the applicant and complainant – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms A. Cannon Solicitor for Public Prosecutions
For the Applicant	Ms F.L. Dalziel	Victoria Legal Aid

VINCENT, J.A.:

The applicant was found guilty by the jury empanelled on his trial in the County Court at Melbourne, on 12 May 2005, on four counts of indecent assault (counts 1, 2, 4 and 5); one count of gross indecency (count 3) and three counts of committing an indecent act with a child under the age of 16 years (counts 6, 7 and 8).

At the trial the prosecution contended that between 9 April 1981 and 31 December 1997, the applicant committed a number of sexual offences against his two daughters (identified here as JW and SW - counts 1 to 5) and his defacto partner’s daughter (identified here as EK - counts 6 to 8). He was at the time of the commission of the alleged offences aged between 32 and 49 years.

After hearing a plea in mitigation of penalty, the sentencing judge, on 15 June 2005, imposed:
On count 1     -          15 months’ imprisonment;
  On count 2     -          nine months’ imprisonment;
  On count 3     -          six months’ imprisonment;
  On count 4     -          18 months’ imprisonment;
  On count 5     -          two years’ imprisonment;
  On count 6     -          18 months’ imprisonment;
  On count 7     -          18 months’ imprisonment; and
  On count 8     -          18 months’ imprisonment.
[1]The sentencing judge further declared that the applicant was sentenced as a serious sexual offender pursuant to s.6F of the Sentencing Act 1991 and also directed that, pursuant to s.50 of the Sex Offenders Registration Act 2004, the applicant had been served with a notice setting out the reporting obligations imposed by law.
His Honour ordered that six months of the sentence imposed on each of counts 1, 4, 6 and 7 be served cumulatively upon that imposed on count 5 and upon each other.…

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 Z W

Details

AGLC: R v Z W [2006] VSCA 256
Case: [2006] VSCA 256
Decision Date: 1 December 2006

CaseChat Overview and Summary

The case of R v Z W involved a conviction of the applicant for multiple counts of indecent assault and gross indecency against his two daughters and the daughter of his de facto partner. The applicant appealed against his conviction, raising several grounds of appeal including the trial judge's failure to sever counts relating to each victim, the admissibility of evidence, and the voluntariness of certain actions. The court was required to determine whether the trial was prejudiced by the trial judge's failure to sever counts, whether the evidence was properly admitted and considered, and if the trial judge erred in certain directions to the jury and in the exclusion of evidence.

The court found that the trial judge did not err in refusing to sever the counts as they were cross-admissible and relevant to the applicant's propensity to commit such acts. The court held that the trial judge did not err in admitting the covert tape recorded interview between the applicant and one of the complainants, as it was relevant to the applicant's propensity to commit such acts. The court also held that the trial judge did not err in failing to direct the jury to not speculate about what a person not called by the applicant might have said, as the evidence was properly before the jury. The court further held that the trial judge did not err in failing to exclude the covert tape recorded interview between the applicant and the complainant, as it was properly admitted and considered.

The court dismissed the application for leave to appeal, finding that the trial was conducted fairly and the evidence was properly considered. The court held that the trial judge did not err in any of the matters raised by the applicant and that there was no miscarriage of justice. The court concluded that the conviction and sentence should stand.

Orders