SV v The Queen

[2017] ACTCA 41

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

SV v The Queen

Citation:

[2017] ACTCA 41

Hearing Dates:

5 July, 19 July 2017

Final submissions received:

14 August 2017

DecisionDate:

4 September 2017

Before:

Penfold ACJ

Decision:

1.   The appellant is refused leave to amend his notice of appeal to add an appeal against conviction.

2.   The parties will be heard on the orders required to ensure that there is no further delay in the hearing of the appeal against sentence.

Catchwords:

APPEAL AND NEW TRIAL – appeal from Supreme Court – jury trial – sexual intercourse without consent – act of indecency.

APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – initially unrepresented appellant – appeal against severity of sentence – application to amend notice of appeal to add appeal against conviction.

APPEAL AND NEW TRIAL – NEW TRIAL-IN GENERAL AND PARTICULAR GROUNDS – Particular Grounds – asserted discrepancy between forensic evidence and complainant’s evidence – difference between evidence of absence and absence of evidence – failure to call three-year-old child as witness – difference between competence and credibility – competence generally not to be tested before jury – no risk of miscarriage of justice identified.

Legislation Cited:

Court Procedures Rules 2006 (ACT), r 5071

Crimes Act 1900 (ACT), s 287

Evidence Act 2011 (ACT), ss 13(1), 13(3), 13(5), 189, 189(1), 189(4)

Cases Cited:

Doney v R (1990) 171 CLR 207

Faris v Conlon [2017] ACTSC 114
The Queen v LK [2010] HCA 17; 241 CLR 177
The Queen v Prasad (1979) 23 SASR 161

Vojneski v The Queen [2015] ACTCA 44

Parties:

SV (Appellant)

The Queen (Crown)

Representation:

Counsel

Mr H Ford (Appellant)

Ms K McCann (Respondent)

Solicitors

Hugh Ford Law Practice (Appellant)

ACT Director of Public Prosecutions (Crown)

File Number:

ACTCA 41 of 2016

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Robinson AJ

Date of Decision:         10 March 2016; 10 August 2016

Case Title:  R v SV

Citation: [2016] ACTSC 211

Introduction

1. On 10 March 2016, SV was found guilty in the Supreme Court, by a jury, of one count of sexual intercourse without consent, and one count of an act of indecency without consent, both offences having been committed during the night of 25-26 January 2015.

1. On 10 August 2016, he was sentenced for those offences, and for a related offence of common assault transferred from the Magistrates Court. The sentences were as follows:

(a)for sexual intercourse without consent, to 4 years imprisonment, from 9 March 2016 to 8 March 2020;

(b)for act of indecency without consent, to 12 months imprisonment, from 9 March 2016 to 8 March 2017;

(c)for common assault, to 3 months imprisonment, from 9 March 2016 to 8 June 2016.

1. The sentencing judge set a non-parole period of 2 years and 2 months.

The sentence appeal

1. On 2 September 2016, SV, unrepresented, filed an appeal against sentence, specifying his ground of appeal as “severity of sentence”.

1. For some time, little was done to progress the…