A H v The Queen

[2012] VSCA 250

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0217
A H	Appellant
v
THE QUEEN	Respondent

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JUDGES	BUCHANAN and TATE JJA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 September 2012
DATE OF JUDGMENT	3 October 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 250
JUDGMENT APPEALED FROM	R v [AH] (Unreported, County Court of Victoria, Judge Bourke, 10 August 2011)

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CRIMINAL LAW – Aiding and abetting the sexual penetration of a person under the age of 16 – Trial judge directed the jury that if they were satisfied there was no consent on the part of the complainant and the appellant was aware that the complainant was not consenting or gave no thought to that question, they should convict the appellant – Acquittals in earlier trial determined the question of consent.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Theo Magazis & Associates
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. In the afternoon of 1 April 2008 a 15 year old girl, whom I will refer to as ‘the complainant’, and her 14 year old cousin went to Epping Plaza, a shopping centre.  Towards evening the complainant met a young man whom she knew, and other youths.  The complainant asked her friend whether his brother could give the complainant and her cousin a lift home.  He agreed and five youths, who included the appellant, and the two girls squashed into a car.  The party later changed into two cars. 

1. Instead of taking the girls home, the youths drove to a park in Lalor.  At the park the appellant, the two brothers and an unknown man had sexual intercourse with the complainant.

1. The appellant and two of the other youths were subsequently charged with a number of sexual offences.  At his trial, the appellant did not dispute the acts of sexual intercourse by himself and his co-offenders, but maintained that the complainant consented and that he reasonably believed she was over the age of 16 years. 

1. At the conclusion of the trial the appellant was convicted on one count of rape as a principal and on two counts of aiding and abetting the sexual penetration by another of a person under the age of 16.  The appellant was acquitted on two counts of rape in respect of which he was alleged to have aided and abetted the principal offenders.  The principal offenders were also acquitted on the counts of rape.

1. The convictions were overturned on appeal.  The appellant was retried and convicted on the same three counts.  The appellant was sentenced to be imprisoned for a term of five years on the count of rape and for a term of 15 months on each of the counts of sexual penetration of a child under 16.  Three months of each of the sentences imposed on the counts of sexual penetration of a child under the age of 16 were cumulated upon the sentence imposed on the count of rape.  The total effective sentence was five years and six months’ imprisonment.  A minimum term of three years was fixed.

1. The appellant has appealed against his convictions on the two counts of aiding and abetting the sexual penetration of a girl under the age of 16.  The sole ground of appeal is as follows:

There was a miscarriage of justice in allowing the jury to convict on the basis there was a lack of consent as this controverted the acquittals in the previous trial of the appellant.

1. At the conclusion of the judge’s charge, the jury asked this question:

With reg (sic) to counts 1 & 2, if there is disagreement to acceptance of knowledge of age, does consent then come into play ie if there is agreement on lack of consent but uncertainty of age, does lack of consent come into it?

(Counts 1 and 2 were the counts of sexual penetration of a child under 16.)  In response to the question the trial judge directed the jury as follows:

I see the question as it states relating to both counts 1 and 2.  Now, in the circumstances of this case if you find beyond reasonable doubt that the accused has aided and abetted the sexual penetration of [the complainant] by the other male, as I have directed, that is, one – there has been an intentional act of penetration of her at age under 16 and by the other male which is not in issue.  Two – at the time the accused knew or believed there was occurring an intentional act of sexual penetration of her which is not in issue.  Three – which is in issue – the accused intentionally encouraged or conveyed support to the principal offender, the other male, in the way required as I have already directed you.  And, if you find beyond reasonable doubt that [the complainant] did not consent and the accused was aware that she was not or might not be consenting or gave no thought to that then your proper verdict on that count would be a verdict of guilty.

If you are not so satisfied as to lack of consent or awareness of that, then you must consider reasonable belief and age, that is, whether the defence has satisfied you on the balance of probabilities of one, belief, and two, that the belief was reasonable.  I hope that clarifies it for you.

1. Section 45(1) of the Crimes Act 1958 provides that a person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.  Pursuant to s 45(4) a defence available to the appellant depended upon him establishing on the balance of probabilities that he believed on reasonable grounds that the complainant was aged 16 or older and upon the Crown failing to prove beyond reasonable doubt that the complainant did not consent to the act of sexual

penetration and that the appellant was aware that the complainant was not or might not be consenting.

1. Counsel for the respondent conceded that the trial judge should have instructed the jury that they were to acquit the appellant if he satisfied them on the balance of probabilities that he believed on reasonable grounds that the complainant was 16 or older.  Having regard to the issues in the first trial, the question of consent had been determined by the verdicts of acquittal of the principal offenders and the appellant on the counts of rape.[1]  Accordingly, the trial judge erred in directing the jury that if the jury were satisfied that the complainant did not consent and the appellant was aware that she was not consenting or gave no thought to that question, then they should convict the appellant. 

   [1]See Carroll v R (2002) 213 CLR 635.

1. In my opinion, the concession was warranted.  The convictions on the counts of aiding and abetting the sexual penetration of a child under 16 should be quashed and the sentences imposed on those counts set aside.  The sentence imposed on the count of rape stands.  I would fix a new non-parole period of two years and six months.

1. The remaining question is whether the appellant should be retried or acquitted on the counts of sexual penetration of a child under 16.  As the appellant has undergone two trials and two appeals and the sentences on the counts, if the appellant were again convicted, would be relatively short, I consider that the appropriate course is to order that verdicts of acquittal be entered.

TATE JA:

1. I agree with Buchanan JA.

T FORREST AJA:

1. I also agree with Buchanan JA.