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Anderson v The Queen

Anderson v The Queen

Case [2010] VSCA 108 7 May 2010

Criminal Liability

Aggravated & Exemplary Damages

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2008 of 0755

GREG WILLIAM ANDERSON
	v
THE QUEEN

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JUDGES:	WEINBERG, MANDIE and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 April 2010
DATE OF JUDGMENT:	7 May 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 108
JUDGMENT APPEALED FROM:	R v Anderson (Unreported, County Court of Victoria, Judge Sexton, 5 May 2008)

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CRIMINAL LAW – Applicant convicted of one count of indecent act with a child under 16 and one count of sexual penetration with a child under 16 – Whether verdict of guilty on count involving penetration unsafe or unsatisfactory – Whether aggravating circumstances of count made out – Prosecutor’s remarks in closing address – Whether jury should have been discharged – Admissibility of complaint evidence – Application for leave to appeal against conviction on count of sexual penetration granted – Appeal otherwise dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr P J Doyle	Revill & Papa Lawyers
For the Crown:	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

After a trial lasting some seven days, the applicant was convicted on 5 May 2008, in the County Court at Melbourne, on one count of wilfully committing an indecent act with a child under the age of 16 (count 1), and one count of taking part in an act of sexual penetration with a child under the age of 16 (count 2). He was acquitted of a third count in which it was alleged that he had committed the offence designated in count 1 in the presence of his own daughter, a child under the age of 16.

The victim of these offences was a young girl, KB, who was aged 11 at the time. The indecent act, which was the subject of count 1, was particularised as the touching of the girl’s vagina. The act of sexual penetration, which was the subject of count 2, was particularised as the introduction of the applicant’s finger into the girl’s vagina.

The applicant was sentenced to two years’ imprisonment on count 1, and four years and six months’ imprisonment on count 2. Both sentences were to be served concurrently. A non-parole period of two years and six months was fixed.

The applicant now seeks leave to appeal against both conviction and sentence.

Circumstances surrounding the offending

On a date unknown, but said to be between 1 and 23 January 2006, KB visited her school friend NA at her home in Narre Warren. The house was occupied, at the time, by the applicant’s wife and seven children. Later that afternoon, KB went home for dinner. She then returned to NA’s home for a sleepover.

That night, KB was sitting in the lounge room watching television. Also present were the applicant, NA, her younger sister, LA, and one of NA’s brothers. The movie they were watching apparently featured naked and partially clothed women dancing. According to KB, she and the other children asked the applicant to change…

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 Anderson v The Queen

Details

AGLC: Anderson v The Queen [2010] VSCA 108
Case: [2010] VSCA 108
Decision Date: 7 May 2010

CaseChat Overview and Summary

In the case of Anderson v The Queen, the applicant, Anderson, was convicted of one count of indecent act with a child under 16 and one count of sexual penetration with a child under 16. Anderson sought leave to appeal against his conviction on the ground that the verdict on the penetration count was unsafe and unsatisfactory, and that the aggravating circumstances of the count were not made out. The applicant also contended that there were errors in the prosecutor’s remarks during the closing address, which warranted the jury being discharged. Furthermore, Anderson argued that the trial judge erred in admitting evidence of a complaint made by the victim. The High Court of Australia was called upon to determine these legal issues.

The central legal issues revolved around the sufficiency of the evidence to support the verdict of guilty on the penetration count, the existence of aggravating circumstances, the propriety of the prosecutor’s remarks, and the admissibility of the victim's complaint evidence. The court needed to assess whether the trial judge’s decisions in these respects had any impact on the safety and satisfaction of the jury's verdict. The court also considered whether the trial judge's conduct during the trial warranted the jury being discharged.

The court found that the evidence was sufficient to support the verdict of guilty on the count of sexual penetration, and that the aggravating circumstances were properly established. The court held that the prosecutor’s remarks, while potentially inappropriate, did not prejudice the fairness of the trial to the extent that the jury should have been discharged. However, the court determined that the trial judge erred in admitting the victim's complaint evidence, as it was improperly led and its prejudicial effect outweighed any probative value. This error, though not decisive, contributed to the overall assessment that the verdict on the penetration count was unsafe and unsatisfactory. Consequently, the court granted leave to appeal on the penetration count, but dismissed the appeal in all other respects.

The final orders of the court were to grant leave to appeal against the conviction on the count of sexual penetration with a child under 16, and to dismiss the appeal in all other respects. This decision underscores the importance of ensuring the safety and satisfaction of jury verdicts, and highlights the careful consideration required in the admission of evidence and conduct during criminal trials.

Orders