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AJ v The Queen

AJ v The Queen

Case [2011] VSCA 215 7 December 2010

Conviction

Sexual offences

Indecent act with or in the presence of child under the age of 16

Evidence

Fair trial

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0991

AJ	Applicant
	v
THE QUEEN	Respondent

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JUDGES	BUCHANAN, WEINBERG and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 November 2010
DATE OF JUDGMENT	7 December 2010
DATE OF ADDENDUM	27 July 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 215
JUDGMENT APPEALED FROM	R v AJ (Unreported, County Court of Victoria, Judge Campton, 16 December 2009)

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CRIMINAL LAW – Conviction – Sexual offences – Indecent act with or in the presence of child under the age of 16 – Evidence – Allegation that complainant sent a text message stating her allegations were false – Whether trial judge restricted defence counsel’s cross-examination of complainant as to the text message – Fair trial – Whether non-disclosure by the Crown of matters potentially affecting the complainant’s credibility rendered trial unfair – Whether disclosure would have significantly damaged Crown case or advanced accused’s defence – R v Grey (2001) 184 ALR 593, applied – Appeal allowed – New trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Gillespie-Jones with Ms E McKinnon	Michael Brugman
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Weinberg and Bongiorno JJA.

WEINBERG JA

BONGIORNO JA:

On 16 October 2009, the applicant, AJ, was found guilty by a jury on one count of committing an indecent act with or in the presence of a child under the age of 16. The child was his daughter, XN. At the same time he was acquitted of two counts of taking part in an act of sexual penetration with the same child. All of the offences were alleged to have occurred between 1 November 2005 and 31 December 2005.

Prior to the trial at which he was convicted, AJ had been tried twice on the same presentment by the same judge. At the first trial, the trial judge discharged the jury without verdict following an irregularity involving defence counsel’s compliance with the rule in Browne v Dunn.[1] At the second trial, the jury was unable to reach a verdict, even by majority, and was discharged without verdict.
[1](1893) 6 R 67.

AJ’s third trial, which was by modern standards extremely short, commenced on 12 October 2009 and finished with a majority verdict in respect of all counts on 16 October 2009. Following a plea hearing on 4 December 2009, on 16 December, the trial judge sentenced AJ to 20 months’ imprisonment on the count of taking part in an indecent act with a child under the age of 16, the only count upon which he was found guilty. Pre-sentence detention of 202 days was noted. Her Honour did not fix a non-parole period in respect of the 20 month term. She gave no reason for not having done so. AJ now seeks leave to appeal to this Court in respect of both his conviction and sentence.

The applicant’s full statement of grounds with respect to…

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 AJ v The Queen

Details

AGLC: AJ v The Queen [2011] VSCA 215
Case: [2011] VSCA 215
Decision Date: 7 December 2010

CaseChat Overview and Summary

In the case of AJ v The Queen, the appellant contested his conviction for indecent acts with or in the presence of a child under 16. The matter was heard in the High Court of Australia, which was tasked with considering whether the trial judge's handling of evidence and the Crown's failure to disclose certain information compromised the fairness of the trial.

The central legal issues revolved around the extent to which the trial judge's decision to limit cross-examination of the complainant regarding a text message she sent, which contradicted her trial testimony, affected the fairness of the trial. Additionally, the court had to assess whether the Crown's non-disclosure of information potentially impacting the complainant's credibility rendered the trial unfair, considering whether such disclosure would have significantly damaged the Crown's case or advanced the accused's defence.

The court found that the trial judge had indeed restricted the defence's cross-examination of the complainant about the text message, which was a significant factor in assessing her credibility. Furthermore, the Crown's failure to disclose information that could have impacted the complainant's credibility was deemed to have rendered the trial unfair. The court concluded that these issues warranted a new trial, applying the principles set out in R v Grey. The High Court allowed the appeal and ordered a new trial, emphasising the importance of ensuring a fair trial in criminal proceedings.

The final orders of the court included the quashing of the appellant's conviction and the ordering of a new trial. The decision underscores the critical nature of maintaining procedural fairness in criminal trials, particularly concerning the handling of evidence and the obligations of disclosure.

Orders