P G v The Queen [2010] VSCA 289

Court of Appeal (Vic)|2010-10-19|Before: NETTLE, NEAVE and HARPER JJA

The application for leave to appeal from Ruling No 1 of her Honour Judge Sexton herein dated 27 August 2010 is dismissed.
The application for leave to appeal from Ruling No 2 of her Honour Judge Sexton herein dated 30 August 2010 is allowed.
The appeal is treated as instituted and heard instanter and is allowed in part.
The orders of the judge below are varied by excluding pursuant to s 101 of the Evidence Act 2008 the following paragraphs of the deposition of NS in addition to those which were excluded by the judge below, namely, para 4 at p 146, para 11 at p 154, para 18 at p 156, and para 21 at p 156.

[1] Count 1 (indecent assault in period beginning 3 January 1984).

[2] Count 9 (indecent assault in period ending 31 December 1989).

[3] Count 10 (indecent assault in period beginning 19 September 1986).

[4] Count 15 (indecent assault in period ending 18 September 1990).

[5] She relied on Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23; Boulos v The Queen [2008] NSWCCA 119, [10] (James J).

[9] Ruling (Unreported, County Court of Victoria, Judge Sexton, 27 August 2010), [20].

[10] The period covered by count 1, which alleged that he had indecently assaulted SRC between 3 January 1984 and 2 January 1986, ended the day before the period covered by the offence to which he pleaded guilty, 3 January to 15 February 1986.

[11] See for example Wells v The Queen [2010] VSCA 100.

[13] Jago [1989] HCA 46; (1989) 168 CLR 23, 34 (Mason CJ), 47 (Brennan J); Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 519 (Mason CJ, Dawson, Toohey and McHugh JJ).

[14] R v Tiso (1990) 12 Cr App R (S) 122, 125 (Taylor LJ).

[15] Crimes Act 1958, ss 61(1A), (1B), but see also s 61(1)(b).

[16] See for example R v Birdsall (Unreported, NSW Court of Criminal Appeal, Cole JA, Grove and Simpson JJ, 3 March 1997), where the delay was 34 years.

[20] Boulos v The Queen [2008] NSWCCA 119, [41] (James J).

[21] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ).

[22] R v Shamouil [2006] NSWCCA 112, [63] (Spigelman CJ).

CRIMINAL LAW - Appeal - Interlocutory appeal - 11 counts of indecent assault and four counts of taking part in an act of sexual penetration with a child under 10 - Refusal to exercise discretion to order permanent stay of proceedings - Applicant previously convicted of indecent assault of one of the complainants - Subsequent prosecution for further offences committed against same complainant and her sister during similar but not same period not oppressive - Unavailability of record of interview, period of delay and use of previous conviction as tendency evidence did not make subsequent proceedings an abuse of process - Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, applied.

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