Bolton (a pseudonym) v The Queen - [2022] VSCA 81

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0152

CLYDE BOLTON (a pseudonym)[1]	Appellant
v
THE QUEEN	Respondent

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

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JUDGES:	MAXWELL P, PRIEST and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 March 2022
DATE OF JUDGMENT:	6 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 81
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Gaynor, 14 June 2019) (Conviction)

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CRIMINAL LAW — Appeal — Conviction —Incest, indecent act with child under 16 and gross indecency with a person under 16 perpetrated against appellant’s daughter and granddaughters — Whether conviction for incest on charge 2, was unreasonable or cannot be supported having regard to the evidence — Whether evidence capable of establishing that sexual penetration occurred — Whether verdict of attempted incest should be substituted — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant:	Mr R Edney	Stary Norton Halphen
For the Respondent:	Ms E Ruddle QC	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the respective reasons for judgment of Priest JA and Sifris JA. I agree with Sifris JA that the appeal should be dismissed, for the reasons which his Honour gives.

PRIEST JA:

By this appeal[2] the appellant challenges his conviction by jury on one charge of incest[3] — he does not attack seven other convictions returned by the same jury — committed against his daughter. The circumstances are as follows.
[2]On 31 August 2021, the appellant was granted both an extension of time and leave to appeal against conviction: Bolton (a pseudonym) v The Queen [2021] VSCA 237 (Kyrou and Kennedy JJA).
[3]Section 52(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.

An indictment filed in the County Court charged the appellant with incest and other offences perpetrated against his daughter, ‘NA’, on various dates in the period between 7 July 1984 and 31 December 1987; and with incest and committing an indecent act with a child under 16, perpetrated against his granddaughters, ‘AT’ and ‘GT’, in a period between 1 January 2009 and 31 March 2014.

On 14 June 2019, a jury empanelled to try the appellant found him guilty of gross indecency (charge 1) and incest (two charges — charges 2 and 3) involving his daughter; and of incest with AT (charges 8, 9, 10 and 12), and committing an indecent act and incest with GT (charge 11). Subsequently, on 9 August 2019, the trial judge sentenced the appellant to a substantial period of imprisonment in accordance with the following table:

Charge Offence Sentence Cumulation

1 Gross indecency with a person under 16 6 months Nil

2 Incest 2 years 1 year

3 Incest 7 years Base

8 Incest[4] 2 years 1 year
[4]The appellant was sentenced as…

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 Bolton (a pseudonym) v The Queen

Details

AGLC: Bolton (a pseudonym) v The Queen [2022] VSCA 81
Case: [2022] VSCA 81
Decision Date: 6 May 2022

CaseChat Overview and Summary

The case of Bolton v The Queen involves an appeal by the appellant, referred to as Bolton, against his conviction for various sexual offences against his daughter and granddaughters. The case was heard and determined in the court of appeal. The appellant was convicted of incest, an indecent act with a child under 16, and gross indecency with a person under 16. The appellant challenged the conviction on the ground that it was unreasonable or not supported by the evidence, specifically questioning whether the evidence was sufficient to establish that sexual penetration had occurred.

The primary legal issues before the court were whether the conviction for incest was unreasonable or unsupported by the evidence and whether the evidence was capable of establishing that sexual penetration had taken place. The court was also asked to consider if the verdict of attempted incest should be substituted for the conviction. The court meticulously reviewed the evidence and the arguments presented by both the appellant and the prosecution to address these issues. It examined the testimonies of the victims, the appellant's admissions, and the medical and other evidence provided.

The court found that the evidence was sufficient to support the conviction for incest. It held that the testimonies of the victims, along with other evidence, were credible and demonstrated that sexual penetration had indeed occurred. The court concluded that the conviction was neither unreasonable nor unsupported by the evidence. Consequently, the appeal was dismissed, and the original conviction was upheld. The court did not find it necessary to substitute the verdict of attempted incest for the conviction of incest.

Orders