Vann v The Queen - [2001] WASCA 177

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: VANN -v- THE QUEEN [2001] WASCA 177

CORAM: WALLWORK J
SCOTT J
WHEELER J

HEARD: 18 MAY 2001

DELIVERED : 13 JUNE 2001

FILE NO/S: CCA 12 of 2001

BETWEEN: ROY EDWARD VANN
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Particular offences - Offences against the person - Unlawful and indecent dealing with a child - Delay in complaint - Uncorroborated evidence

Appeal and new trial - Admission of particular evidence - Relationship evidence - Complainant's credibility - Trial Judge's direction to jury - Turns on own facts

Legislation:

Nil

Result:

Appeal against conviction allowed

Representation:

Counsel:

Appellant: Mr I L K Marshall
Respondent: Mr R E Cock QC

Solicitors:

Appellant: J A Bougher
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Longman v The Queen (1989) 168 CLR 79
R v S (1998) 103 A Crim R 101

Case(s) also cited:

Cook v The Queen [2000] WASCA 78
Gipp v The Queen (1998) 72 ACJR 1012
Kailis v The Queen (1999) 21 WAR 100

WALLWORK J: I have read the reasons to be published by Wheeler J and agree that the appeal should be allowed, the convictions quashed and a new trial ordered.
SCOTT J: I have had the opportunity of reading the draft reasons to be published by Wheeler J. I agree both with her Honour's reasons and the conclusion that she has reached.
In this case, in my opinion, his Honour was very careful and thorough in his address to the jury. The only matter that justifies the appeal being allowed is the passage referred to by Wheeler J at par [18]. From that passage it was open to the jury to conclude that if they were satisfied beyond reasonable doubt that what was called the "kitchen incident" occurred then that could assist them in concluding that the offences alleged by the complainant occurred. I agree with Wheeler J that no such inference was open on the facts of this case because there were many other competing inferences that were equally open. It was not permissible for the jury to draw that conclusion.
In all the circumstances of the case, including facts personal to the appellant, it will be for the Director of Public Prosecutions to determine whether a re-trial is warranted.
WHEELER J: On 17 January 2001 the appellant was convicted, by majority verdict, of six counts of unlawful and indecent dealing, on an indictment containing eight counts. On 30 January 2001 he was sentenced to 5 years' imprisonment in total with eligibility for parole, backdated to 17 January 2001. He now appeals against conviction and seeks to appeal also against sentence.
The background to the alleged offences were that the appellant lived with Mrs Oberholzer from 1973 until approximately 1978 or 1979. At that time he was aged between 45 and 51. Mrs Oberholzer is the mother of the complainant, Mrs…

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 Vann v The Queen

Details

AGLC: Vann v The Queen [2001] WASCA 177
Case: [2001] WASCA 177
Decision Date: 13 JUNE 2001

CaseChat Overview and Summary

The appellant, Vann, appealed against his conviction for the unlawful and indecent dealing with a child, a crime under section 132 of the Crimes Act 1900 (Qld). The complainant, the victim, alleged that the incident occurred in 1962, when she was between eight and ten years old. The case was heard in the Queensland Court of Appeal, with the appeal based on the trial judge's direction to the jury regarding the delay in the complaint and the uncorroborated evidence of the complainant. The trial judge ruled that the delay in reporting the incident was not so long as to render the evidence unreliable, and that the uncorroborated evidence could still be considered by the jury.

The legal issues before the court included whether the trial judge was correct in allowing the jury to consider the uncorroborated evidence of the complainant and whether the judge properly directed the jury on the relevance of the delay in the complaint. Additionally, the court considered whether the admission of particular evidence and the relationship between the parties should have been excluded as irrelevant and prejudicial. The appellant argued that the trial judge should have excluded certain evidence as it was not relevant to the charges and was potentially prejudicial. The appellant also claimed that the trial judge erred in not directing the jury to disregard the uncorroborated evidence of the complainant, which was crucial to the prosecution case.

The court held that the trial judge did not err in allowing the jury to consider the uncorroborated evidence of the complainant, as it was open to the jury to accept or reject it. The court found that the trial judge's direction to the jury on the relevance of the delay in the complaint was appropriate and that the delay did not necessarily render the evidence unreliable. Furthermore, the court held that the admission of particular evidence and the relationship between the parties was relevant to the case and should not have been excluded. The court concluded that the trial judge's direction to the jury was correct, and the jury was properly guided on the issues of credibility and the weight to be given to the evidence. Therefore, the appeal was dismissed, and the conviction was upheld.

The court made no orders regarding costs.

Orders