B W A v The Queen - [2012] VSCA 218

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2012 0159

B W A	Applicant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG JA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 September 2012
DATE OF JUDGMENT	10 September 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 218
JUDGMENT APPEALED FROM	R v [B W A ] (Unreported, County Court of Victoria, Judge Gamble, 29 June 2012)

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of one charge of sexual penetration of a child and acquitted of two charges of sexual penetration of a child and three charges of performing an indecent act with a child – Whether verdicts inconsistent – Crown concession that verdicts could not stand together – Leave to appeal granted – Appeal allowed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich	Keating Avery
For the Crown	Mr C Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I will ask T Forrest AJA to deliver the first judgment.

T. FORREST AJA:

On 7 June 2012 at the County Court in Melbourne, the applicant was convicted of one count of sexual penetration of a child under 16, such child being under his care, supervision or authority (contrary to s 45(1)(b) Crimes Act 1958).

3 At the same trial, the applicant was acquitted of five further charges. The following table sets out a summary of the verdicts:

Charge on Indictment Offence Verdict

1. Sexual penetration of a child under 16 under care supervision or authority contrary s 45(1)(b) Crimes Act 1958. NG

2. Indecent act with or in presence of a child under 16 contrary s 47(1) Crimes Act 1958. NG

3. Sexual penetration of a child under 16 under care supervision or authority contrary s 45(1)(b) Crimes Act 1958. G

4. Indecent act with or in presence of a child under 16 contrary s 47(1) Crimes Act 1958. NG

5. Sexual penetration of a child under 16 care supervision or authority contrary s 45(1)(b) Crimes Act 1958. NG

6. Indecent act with or in presence of a child aged 16 or 17 contrary s 49 Crimes Act 1958. NG

The applicant was sentenced to two years and six months’ imprisonment. Fifteen months of this sentence was suspended for an operational period of three years.

Background

The applicant was the complainant’s teacher at a regional college. In early 2010, she was 15 years old. The offending, involving six charges, was alleged to have

occurred on five separate occasions during the year. I shall set out very briefly the nature of the allegations. All offences were alleged to have been committed between 1 February and 20 April 2010.

Charge 1

At the applicant’s home the applicant was alleged to have inserted his tongue into the complainant’s vagina. Verdict: Not Guilty.

Charge 2

At the applicant’s home the complainant touched the applicant’s erect penis while they kissed each other. Verdict: Not Guilty.

Charges…

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 B W A v The Queen

Details

AGLC: B W A v The Queen [2012] VSCA 218
Case: [2012] VSCA 218
Decision Date: 10 September 2012

CaseChat Overview and Summary

In the case of B W A v The Queen, the applicant sought leave to appeal against a conviction for one charge of sexual penetration of a child, with two charges of sexual penetration of a child and three charges of performing an indecent act with a child being acquitted. The High Court of Australia was called upon to determine whether the verdicts were inconsistent and whether leave to appeal should be granted. The central legal issues revolved around the consistency of the verdicts, given that the Crown conceded that the verdicts could not stand together. The applicant argued that the inconsistency in the verdicts warranted a review of the conviction.

The High Court examined the nature of the inconsistency and the Crown's concession, which was that the verdicts could not stand together. The Court held that the inconsistency between the verdicts warranted a review, and thus, the appeal should proceed. The Court concluded that the inconsistency in the verdicts was significant enough to merit an appeal, as it suggested a potential miscarriage of justice. Consequently, the Court granted leave to appeal and allowed the appeal, albeit without finding any point of principle to be of general importance.

The Court's decision to grant leave to appeal and allow the appeal was based on the significant inconsistency in the verdicts, which raised serious concerns about the fairness of the trial process. The Crown's concession further reinforced the Court's view that the verdicts could not stand together. The Court did not find any point of principle to be of general importance, but the inconsistency in the verdicts was sufficient grounds for the appeal to proceed. The final orders of the Court included the allowance of the appeal and the granting of leave to appeal against the conviction, while not identifying any point of principle.

Orders