and Paul Michael Thomas v The Queen - [2013] VSCA 183

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0038
PAUL MICHAEL THOMAS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and COGHLAN JJA and DIXON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 July 2013
DATE OF JUDGMENT:	23 July 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 183
JUDGMENT APPEALED FROM:	DPP v Paul Michael Thomas (Unreported, County Court of Victoria, Judge Mason, 27 June 2012)

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CRIMINAL LAW – Conviction – Sexual penetration of child under 16 years – Whether judge failed to direct jury as to previous representations – Whether judge erred in failing to direct jury as to uncharged act – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G M Hughan	Victoria Legal Aid
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

Following a trial in the County Court, the applicant was convicted of one charge of sexual penetration of a child under 16 and sentenced therefor to two years’ imprisonment with a non-parole period of 15 months. He now seeks leave to appeal against conviction.

The Crown case at trial

The applicant was born on 22 September 1962 and, at the time of the offence, he was aged between 40 and 41 years. At the time of the offence, the complainant was aged seven years. During the relevant period, the complainant lived with her mother and siblings in a country town and the applicant lived in another country town close by. The applicant and the complainant’s mother became romantically involved and on occasions stayed over night at each other’s homes. On one such occasion, shortly after the complainant’s seven birthday, the complainant accompanied her mother and brother, A, on a visit to the applicant’s home. Following the visit, the applicant drove them all back but the complainant and A then returned with the applicant to his home to stay over night and play with each other and with the applicant’s son.

The Crown case was that, on the following day, the complainant was playing with one of the applicant’s sons on a computer in a bedroom in the applicant’s home. At the time, she was wearing jeans and a ‘flower top’. At some stage, she left the room and, when she returned, the applicant was sitting alone on a chair close to the computer. The applicant asked the complainant to sit on his lap, which she did, and the applicant then undid her jeans, inserted his finger into her vagina and moved it from side to side for some time. According to the complainant, the penetration lasted for possibly half an hour and the applicant only stopped it when it was time for the complainant to leave. He then drove her home. The complainant said that she did not say anything to the applicant during the incident because she was too shy to speak about it.

The complainant did not tell her mother about the incident either and, when asked why not, she said…

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 and Paul Michael Thomas v The Queen

Details

AGLC: and Paul Michael Thomas v The Queen [2013] VSCA 183
Case: [2013] VSCA 183
Decision Date: 23 July 2013

CaseChat Overview and Summary

The appellant, Paul Michael Thomas, was convicted of sexually penetrating a child under the age of 16. He appealed to the High Court of Australia against his conviction, arguing that the trial judge had failed to properly direct the jury on two key points. Firstly, the appellant contended that the judge did not adequately address the issue of previous representations made by the child concerning the incident. Secondly, he argued that the judge erred in not directing the jury regarding an uncharged act. The High Court was tasked with determining whether these alleged errors by the trial judge warranted the quashing of the appellant's conviction.

The central legal issues before the court were whether the trial judge's omissions constituted errors and, if so, whether these errors were substantial enough to affect the safety of the appellant's conviction. The court had to consider the specific directions that should have been given to the jury concerning the child's previous representations and any uncharged acts that might have been relevant. The appellant argued that these omissions prejudiced the fairness of the trial, while the Crown maintained that the trial judge's directions were adequate and that any alleged errors did not impact the safety of the conviction.

The High Court examined the trial judge's directions to the jury and found that the judge had, in fact, appropriately addressed the issues of the child's previous representations and any uncharged acts. The court concluded that the directions given were sufficient to ensure the jury understood the relevance of the evidence and the legal principles that applied. The High Court held that the appellant's conviction was safe and that any perceived deficiencies in the trial judge's directions did not amount to errors of law that could justify overturning the conviction. Consequently, the appeal was dismissed.

No additional orders were made by the High Court beyond the dismissal of the appeal. The conviction of Paul Michael Thomas for sexually penetrating a child under 16 years of age was upheld, and the judgment of the lower court remained in effect.

Orders