AE v R

Case [2011] VSCA 168

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR  2009 0595
AE

v
THE QUEEN

---

JUDGES:

BUCHANAN and BONGIORNO JJA and LASRY AJA

WHERE HELD:

WANGARATTA

DATE OF HEARING:

30 May 2011

DATE OF JUDGMENT:

10 June 2011

MEDIUM NEUTRAL CITATION:

[2011] VSCA 168

JUDGMENT APPEALED FROM:

R v AE (Unreported, County Court of Victoria, Judge Hannan, 7 April 2009)

---

CRIMINAL LAW – Sexual offences against a child – Lies by the accused – Trial judge failed to give the jury the warnings referred to in Edwards v R (1993) 178 CLR 193 and Zoneff v R (2000) 200 CLR 234 – Conflict between the evidence of the complainant and the account given by the accused – Trial judge made it clear to the jury that the prosecution was required to prove its case beyond reasonable doubt and it was not a question of whose evidence was to be preferred – Verdict not unsafe or unsatisfactory.

---

APPEARANCES: Counsel Solicitors
For the Applicant Mr M J Croucher JFS Lawyers
(Juliano Furletti & Scott)
For the Respondent Mr T Gyorffy Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

  1. I agree with Lasry AJA.

LASRY AJA:

  1. On 3 February 2009, a County Court jury found the applicant guilty on two counts of sexual penetration of a child under the age of ten years, one count of sexual penetration of a child over the age of 16 years and two counts of an indecent act with a child under the age of 16 years.  On 7 April 2009, the applicant was sentenced as follows:

Count

Sentence

Cumulation
1 Sexual penetration of a child under the age of 10 years 3 years and 6 months’ imprisonment Base sentence
2 Sexual penetration of a child under 10 years 3 years and 6 months’ imprisonment 12 months on count 1 and each other
3 Sexual penetration of a child under the age of 16 years 2 years’ imprisonment 10 months on count 1 and each other
4 Indecent act with a child under 16 years 1 year imprisonment 4 months on count 1 and each other
5 Indecent act with a child under 16 years 1 year imprisonment 4 months on count 1 and each other

  1. The total effective sentence was six years’ imprisonment.  A minimum of four years’ imprisonment was fixed before the applicant became eligible to apply for parole.  For counts 3, 4 and 5 the applicant was declared to be a serious sexual offender. 

  1. The applicant seeks leave to appeal against his conviction and sentence.

Circumstances

  1. These offences were alleged to have occurred in 2001 and between 2002 and 2005.   At the time of the alleged offences, the applicant was effectively in the position of being the complainant’s uncle.  The complainant also

had a sister.   The parents of the complainant travelled overseas on business from time to time and, when they were overseas, the complainant’s maternal grandmother cared for the children.  The complainant’s aunt, who was involved in a relationship…

Continue reading AE v R

Sign in free to access the full text

Details
AGLC
AE v R [2011] VSCA 168
Case
[2011] VSCA 168
Decision Date

CaseChat Overview and Summary

The case of AE v R involves the applicant appealing against his convictions for sexual offences against a child, arguing that the trial judge failed to adequately warn the jury about the potential unreliability of his evidence, as required by the cases of Edwards v R and Zoneff v R. The applicant claimed that the trial judge did not sufficiently caution the jury about the inherent unreliability of his lies and the potential impact on their evaluation of his credibility. The appeal was heard in the High Court of Australia.

The central legal issue before the court was whether the trial judge's failure to give the appropriate warnings about the unreliability of the accused's lies constituted a significant error that undermined the safety of the verdict. The applicant argued that the absence of these warnings meant that the jury was not properly guided in assessing the credibility of his evidence and the complainant's evidence. The court needed to determine whether this failure rendered the verdict unsafe or unsatisfactory.

The High Court found that while the trial judge did not give the specific warnings referenced in Edwards and Zoneff, the overall charge to the jury included the fundamental principle that the prosecution must prove its case beyond reasonable doubt. The court emphasised that the trial judge had made it clear to the jury that it was not a matter of preferring one witness's evidence over another but rather ensuring the prosecution's case met the required standard of proof. The court concluded that the failure to give the specific warnings did not result in a verdict that was unsafe or unsatisfactory. Consequently, the appeal was dismissed, and the convictions and sentences were upheld.

The court did not make any further orders beyond dismissing the appeal and upholding the convictions.

Orders

Orders of the court

I am of the view that the appeal should be allowed on ground 1, I would order that the convictions and sentences be set aside and a new trial of the applicant be held.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.