DPP v Ashley (Unreported, County Court of Victoria, Judge Douglas, 3 December 2015)
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CRIMINAL LAW – Conviction – Applicant convicted of nine charges of sexual penetration of a child under 16 – Verdicts of guilty said to be inconsistent with verdicts of not guilty – Admissibility of uncharged criminal acts – Trial judge said to have erred in refusing application for direction regarding failure of Crown to call witness – Verdicts said to be unreasonable and/or not supported by evidence – No legal or logical inconsistency between verdicts – Uncharged acts admissible as relevant to context – No miscarriage of justice – Verdicts reasonably open – ss 12, 43 Jury Directions Act – Leave to appeal refused.
CRIMINAL LAW – Sentence – Applicant sentenced to nine years’ imprisonment with non-parole period of six years – Whether sentence manifestly excessive – Sentence within range – Leave to appeal refused.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr J Dickinson QC
Doogue O’Brien George
For the Respondent
Mr D Trapnell QC with Mr M D Stanton
Mr J Cain, Solicitor for Public Prosecutions
REDLICH JA WEINBERG JA HANSEN JA:
On 17 November 2015, the applicant was convicted in the County Court at Melbourne on nine charges of sexual penetration of a child under the age of 16. He was acquitted of two further charges of the same offence.
An initial trial (conducted from 26 to 29 October 2015) was aborted. The jury in that trial had to be discharged because the judge fell ill. A second trial commenced on 2 November 2015, and the convictions followed.
Following a plea on 27 November 2015, the applicant was sentenced on 3 December 2015 as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Sexual penetration of a child under 16 [Crimes Act 1958 s 45(1)]
[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.
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Details
AGLC
Ashley v The Queen [2016] VSCA 246
Case
[2016] VSCA 246
Decision Date
CaseChat Overview and Summary
In the case of Ashley v The Queen, the applicant was convicted on nine counts of sexual penetration of a child under 16 years of age. The applicant appealed against both his conviction and sentence. The appeal raised several issues, including the consistency of the verdicts, the admissibility of uncharged criminal acts, the trial judge's refusal to direct the jury regarding the Crown's failure to call a witness, and the overall reasonableness and support of the verdicts by the evidence.
The court considered whether there was a legal or logical inconsistency between the verdicts of guilty and not guilty. It concluded that no such inconsistency existed and that the uncharged acts were admissible as relevant to the context of the case. The court also found that the trial judge did not err in refusing to direct the jury regarding the Crown's failure to call a witness, and that the verdicts were not unreasonable or unsupported by evidence. The court further held that the sentence imposed was within the appropriate range and was not manifestly excessive.
The court dismissed the appeal against conviction and sentence and refused leave to appeal. The convictions and sentences were affirmed, and the applicant's appeal was unsuccessful in its entirety. The court found that the verdicts were reasonably open on the evidence and that there was no miscarriage of justice. The trial process was deemed to have been fair, and the sentences imposed were deemed to be appropriate.