AC v The Queen - [2014] VSCA 71

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0184

AC	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE, WEINBERG and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 March 2014
DATE OF JUDGMENT	11 April 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 71	First Revision 11 April 2014, [1], [6], [116], [118]
JUDGMENT APPEALED FROM	The Queen v [AC] (Unreported, County Court of Victoria, Judge Hampel, 14 May 2013 (Date of Conviction))

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CRIMINAL LAW – Application for leave to appeal against conviction – Rape – Whether substantial miscarriage of justice due to the terms of the charge – Delay in making of complaint by child complainant – Comment in charge about the experience of judges – Whether conviction unsafe and unsatisfactory – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann	Kurnai Legal
For the Respondent	Ms S Flynn	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I have had the advantage of reading the draft reasons of Osborn JA, and I agree with him for the reasons he gives, that leave to appeal should be refused.

WEINBERG JA:

I have had the advantage of reading, in draft, the reasons for judgment prepared by Osborn JA. I agree, for the reasons given by his Honour, that leave to appeal should be refused.

OSBORN JA:

On 15 May 2013, following a trial before her Honour Judge Hampel and a jury, the applicant (now aged 20)[1] was convicted in the County Court at Melbourne of the offence of rape.
[1]It appears the applicant’s date of birth is 8 June 1993.

The alleged victim was a nine year old boy who was penetrated anally with a vibrator in the early hours of Sunday 23 June 2012.

There was no issue on the evidence that the victim was so penetrated. The issue for the jury was whether they were satisfied beyond reasonable doubt that the applicant was responsible.

The applicant now seeks leave to appeal the verdict on two grounds.[2]

·Ground 3 — The learned trial judge’s charge was unbalanced and factually wrong in a number of respects leading to a substantial miscarriage of justice when considered as a whole.
·Ground 4 — The conviction for the charge of rape was against the weight of evidence and therefore unsafe and unsatisfactory.

[2]Grounds 1 and 2 of the notice of appeal were abandoned in argument on appeal.

Background facts

There were some aspects of the sequence of events which were not in issue.

On the evening of Saturday 23 June 2012, the applicant, his mother (AG), his girlfriend TA and some other friends and relatives visited the house of the complainant’s mother, PS. The group partied at the house late into the night, consuming alcohol and in some instances other substances.

The complainant (born 20 May 2003) spent much of the night playing video games in his room. The applicant and his cousin WD spent considerable time in the room with the complainant over…

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 AC v The Queen

Details

AGLC: AC v The Queen [2014] VSCA 71
Case: [2014] VSCA 71
Decision Date: 11 April 2014

CaseChat Overview and Summary

The case of AC v The Queen involved an application for leave to appeal against the appellant’s conviction for the offence of rape. The decision was made by the High Court of Australia. The dispute centred around the terms of the charge against the appellant, specifically whether the charge was so defective that it led to a substantial miscarriage of justice. The appellant also argued that the delay in making the complaint by the child complainant and comments in the charge about the experience of judges contributed to the alleged unfairness.

The legal issues the court had to decide included whether the charge against the appellant was defective to the extent that it rendered the conviction unsafe and unsatisfactory, and if the delay in the complaint or the comments about judges' experiences constituted grounds for appeal. The court had to assess the impact of these factors on the fairness of the trial and the reliability of the conviction. The appellant contended that these elements warranted a review of the conviction, while the respondent argued that the trial was conducted fairly and that the conviction was sound.

The court considered the appellant’s arguments and found that the charge, although not perfect, did not lead to a substantial miscarriage of justice. The court held that the delay in the complaint and the comments about judges’ experiences did not affect the fairness of the trial or the reliability of the conviction. The court found that the trial judge had managed the case properly and that the evidence was sufficient to support the conviction. Consequently, the application for leave to appeal was refused.

The final orders of the court were that the application for leave to appeal against the conviction was dismissed. The conviction for the offence of rape remained in place, and the appellant was not granted permission to appeal the matter further. The High Court determined that the appeal did not meet the threshold for leave to appeal, affirming the original decision of the lower court.

Orders