R v G J B [2002] VSCA 54

Court of Appeal (Vic)|2002-04-19|Before: WINNEKE, P., BATT, J.A. and O'BRYAN, A.J.A.

For the reasons given I would allow the appeal against conviction; and quash the convictions recorded and sentences imposed upon counts 2 to 5 inclusive. As there is no appeal against the conviction recorded and the sentence imposed upon count 1, the sentence of four years imposed upon that count will stand. It follows that the "serious offender notation" made by the judge pursuant to s.6F of the Sentencing Act 1991 is unwarranted. I would propose that the appellant serve a period of three years before becoming eligible for parole.

I agree with the President, whose reasons for judgment I have had the benefit of reading in draft. In essence, the acts the subject of counts 2 to 5 were inherently ingredients of the offence alleged in count 1 and the pleader could not circumvent this fact by a purportedly limiting particularisation. Moreover, if the respondent's argument were correct it would by no means rarely be possible to allege a number of s.47A offences committed against the same victim in the same period, each constituted by three instances of a different kind of sexual act, which seems to me to be absurd.

I have had the advantage of reading the reasons for judgment in draft of the President. I agree with the President that leave to appeal out of time against the convictions on counts 2, 3, 4 and 5 should be granted and that the appeal be granted with the consequence that convictions imposed in respect of those counts will be

I agree with the President that counts 2 to 5 inclusive are particulars of, and alternatives to, the offence charged in count 1. Once the appellant pleaded guilty to count 1 he should not have been required to plead to the remaining counts.

I agree in the orders proposed by the President in paragraph [20] of his reasons for judgment.

[1] cf. R. v. KRM [1999] VSCA 91; (1999) 105 A.Crim.R. 437 at 439; R. v. John William Macfie [2000] VSCA 173 at [33].

[3] Crimes Act 1900 (ACT) s.92EA; Crimes Act 1900 (NSW) ss. 66A-EA; Criminal Code (NT) s.131A; Criminal Code (Qld) s.229B; Criminal Law Consolidated Act 1935 (SA) s.74; Criminal Code (WA) s.321A; Criminal Code (Tas) s.125A.

[4] KBT v. R. (1997) 191 C.L.R. 417; KRM v. R. [2001] HCA 11; (2001) 75 A.L.J.R. 550; R. v. KRM, supra (Vic. Court of Appeal); R. v. Macfie, supra.

[5] The section was amended in 1997 to take effect from 1 January 1998.

[7] At [35] per Winneke, P. and Chernov, J.A., with whom Brooking, J.A. agreed.

[8] R. v. Murphy [1965] VicRp 26; [1965] V.R. 187; R. v. Kardogeros [1991] VicRp 19; [1991] 1 V.R. 269 at 273; R. v. Tait [1996] VicRp 48; [1996] 1 V.R. 662; R. v. Parsons [1998] 2 V.R. 478 at 482-3.

[9] cf. Wemyss v. Hopkins (1875) L.R. 10 Q.B. 378; R. v. Weeding [1959] VicRp 50; [1959] V.R. 298 at 301, 305; Falkner v. Barba [1971] VicRp 39; [1971] V.R. 332; R. v. Sessions [1998] 2 V.R. 304.

[10] cf. Pearce v. R. (1998) 194 C.L.R. 610 at 620-1.

[11] cf. R. v. Hoar [1981] HCA 67; (1981) 148 C.L.R. 32, at 38.

Section 47A of the Crimes Act creates an offence which is relatively new in the criminal calendar of this State. It was introduced into the Crimes Act in 1991 by the Crimes (Sexual Offences) Act of that year. Judging from the debates which accompanied the second reading of the Bill (Hansard, Legislative Assembly, 13-20 March 1991, 506-17, 652-668), the offence was introduced to overcome perceived deficiencies in criminal pleading said to have been exposed in the decision of the High Court in S. v. R. [1989] HCA 66; (1989) 168 C.L.R. 266, in which the young victim of repeated sexual abuse was unable to identify with precision the circumstances and occasions in and upon which the several acts had occurred[1]. However, as this Court noted in R. v. Macfie[2] the provisions of s.47A have a tendency to "cut across time honoured concepts of procedural fairness" in the administration of the criminal law which have long established that a person accused of a serious criminal offence is entitled to know with particularity the offence he is said to have committed and the occasion upon which and the circumstances in which he is said to have committed it. It is no doubt these facets of the offence which have caused it and its counterparts in other States[3], to become the subject of close scrutiny[4]. No doubt, in the desire to "bring to book" adults who have engaged, over lengthy periods, in repeated sexual defilement of children, the legislature - in creating the "relationship offence" described in s.47A of the Crimes Act - has put at potential risk one of the fundamental principles of the common law; namely the specificity with which the allegation of serious criminal conduct should be particularized and notified to the person accused. Thus, in its current form[5], s.47A(3) provides:

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