Bolton (a pseudonym) v The Queen - [2021] VSCA 237

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0152

CLYDE BOLTON (a pseudonym)[1]	Applicant
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 applicant’s name.

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JUDGES:	KYROU and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 August 2021
DATE OF JUDGMENT:	31 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 237
JUDGMENT APPEALED FROM:	[2019] VCC 1247 (Judge Gaynor)

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CRIMINAL LAW – Appeal – Conviction – Application for extension of time to file application for leave to appeal – Applicant convicted of 6 charges of incest, 1 charge of gross indecency with a child under 16 and 1 charge of indecent act with a child under 16 – Proposed ground of appeal that conviction on 1 incest charge unsafe and unsatisfactory because evidence did not establish penetration – Crown concession that proposed ground reasonably arguable – Common ground that, if conviction for incest set aside, conviction for attempted incest could be substituted without need for new trial – Delay of nearly 11 months in filing application for leave to appeal – Whether satisfactory explanation for delay – Public interest in finality of criminal proceedings – Public interest in removal of unsafe convictions – Extension of time and leave to appeal granted – Criminal Procedure Act 2009 s 277.

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

KYROU JA
KENNEDY JA:

Introduction and summary

On 14 June 2019, following a jury trial before a County Court judge, the applicant was convicted of the offences set out in the table below. On 9 August 2019, he was sentenced as set out in that table:[2]
[2]DPP v Bolton (a pseudonym) [2019] VCC 1247.

Charge Offence Maximum Sentence Cumulation

1 Gross indecency with a child under 16 [Crimes Act 1958 s 50(1)] 2 years 6 months Nil

2 Incest [Crimes Act s 52(1)] 20 years 2 years 1 year

3 Incest [Crimes Act s 52(1)] 20 years 7 years Base

8 Incest [Crimes Act s 44(1)] 25 years 2 years 1 year

9 Incest [Crimes Act s 44(1)] 25 years 2 years 1 year

10 Incest [Crimes Act s 44(1)] 25 years 2 years 1 year

11 Indecent act with a child under 16 [Crimes Act s 47(1)] 10 years 6 months 3 months

12 Incest [Crimes Act s 44(1)] 25 years 2 years 1 year

Total effective sentence: 12 years and 3 months’ imprisonment

Non-parole period: 9 years and 6 months’ imprisonment

Pre-sentence declaration: 49 days

Other orders: Reporting period of life pursuant to s 34 of the Sex Offenders Registration Act 2004

Incest charges 2 and 3 involved the applicant’s daughter (‘AB’), whilst incest charges 8, 9, 10 and 12 involved a…

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 [2021] VSCA 237
Case: [2021] VSCA 237
Decision Date: 31 August 2021

CaseChat Overview and Summary

The appellant, identified as Bolton, was convicted in a lower court on six charges of incest, one charge of gross indecency with a child under 16, and one charge of indecent act with a child under 16. This appeal centred on the applicant's request for an extension of time to file an application for leave to appeal, as well as the appeal itself. The primary legal issues were whether there was a satisfactory explanation for the delay in filing the application for leave to appeal, and whether the public interest favoured the grant of an extension of time and leave to appeal.

The court considered the delay of nearly 11 months in filing the application for leave to appeal and the competing public interests at stake. The court noted that Bolton proposed to appeal on the ground that his conviction on one of the incest charges was unsafe and unsatisfactory because the evidence did not establish penetration. The Crown conceded that this ground was reasonably arguable, and it was common ground that if the conviction for incest was set aside, a conviction for attempted incest could be substituted without the need for a new trial. The court held that the delay was not entirely inexcusable and there were mitigating factors, such as the applicant's change of legal representation and the complexity of the issues. Furthermore, the public interest favoured the removal of unsafe convictions and the finality of criminal proceedings was not significantly prejudiced by the delay.

The court granted the extension of time and leave to appeal under the Criminal Procedure Act 2009 s 277, allowing Bolton to proceed with his appeal against the conviction on one of the incest charges. This decision recognised the importance of addressing unsafe convictions while balancing the public interest in the finality of criminal proceedings.

Orders