Austin Harrison (a pseudonym)[1] v The Queen - [2020] VSCA 157

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0051

AUSTIN HARRISON (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	MAXWELL P, McLEISH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 May 2020
DATE OF JUDGMENT:	16 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 157
JUDGMENT APPEALED FROM:	[2019] VCC 146 (Judge M Bourke)

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CRIMINAL LAW – Appeal – Conviction – Incest – Whether verdict unreasonable and cannot be supported by evidence – Whether open to jury to conclude there had been penetration of complainant’s vagina – Complainant described penetration of external genitalia – Sufficient to satisfy statutory definition – Complainant’s understanding of ‘penetration’ not relevant – Leave to appeal refused – Crimes Act1958 s 35.

WORDS AND PHRASES – ‘vagina’, ‘penetration’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr N J Goodfellow	Tyler Tipping & Woods
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
McLEISH JA
T FORREST JA:

Summary

The applicant was tried before a County Court jury on four charges of incest and two charges of indecent assault. The complainant was his natural daughter, who was aged about 14 at the time of the alleged offending. Following successful no case submissions in respect of a number of the charges, the jury were left to consider two charges of incest. The applicant was convicted on both charges.

He now seeks leave to appeal against conviction on a single ground, namely, that the jury verdict was unreasonable and cannot be supported by the evidence. Specifically, he contends that it was not open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that there had been penetration of the complainant’s vagina on either of the alleged occasions.

For reasons which follow, we would refuse leave to appeal. In short, the descriptions given by the complainant in her evidence clearly established that, on both occasions, there had been penetration of what is referred to (in the definition of ‘vagina’ in s 35 of the Crimes Act 1958) as the ‘external genitalia’. The fact that the complainant herself did not regard what had occurred as ‘penetration’ does not affect the safety of the verdicts.

Was the element of penetration proved beyond reasonable doubt?

Commendably, counsel for the applicant (who was also defence counsel at trial) acknowledged at the outset that even ‘slight or fleeting’ penetration would suffice to establish this element of the offence of incest. Counsel cited the following passage from Anderson v The Queen,[2] where Weinberg JA (with whom Mandie and Bongiorno JJA agreed) said:

As soon as there is any penetration by a finger into any part of the vagina as defined, no matter how slight, and no matter how…

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.

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Details

Case: [2020] VSCA 157
Decision Date: 16 June 2020

CaseChat Overview and Summary

The case of Austin Harrison, referred to as a pseudonym, against The Queen involves an appeal against his conviction for the crime of incest. The appeal was based on the contention that the jury's verdict was unreasonable and not supported by the evidence. The crux of the appeal was the interpretation of the term 'penetration' as defined by the Crimes Act 1958, in relation to the complainant's account of the events. The High Court was tasked with determining whether the jury's conclusion that there had been penetration of the complainant's vagina was legally sound, despite the complainant only describing the penetration of her external genitalia.

The legal issues before the court centred on the statutory definition of 'penetration' and whether the complainant's limited understanding of the term was pertinent to the jury's decision. The court had to assess if the jury could reasonably conclude that there was penetration of the vagina as defined by the Act, based on the complainant's testimony. It was also necessary to consider whether the jury's decision was open to them, given the statutory definition and the complainant's description of the incident.

The court, in examining the statutory language and the jury's role in interpreting evidence, determined that the statutory definition of 'penetration' was satisfied by the complainant's account of events. It was held that the complainant's understanding of the term 'penetration' was not a relevant factor in the jury's decision-making process. The court found that the jury was entitled to conclude that there had been penetration of the vagina, even though the complainant had only described the penetration of her external genitalia. Consequently, the appeal was dismissed and leave to appeal was refused.

Orders