Boyd Seymour (a pseudonym)[1] v The Queen - [2020] VSCA 113

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0139

BOYD SEYMOUR (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 and the use of initials in place of the name of the complainant and other witnesses.

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JUDGES:	MAXWELL P, KAYE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 April 2020
DATE OF JUDGMENT:	12 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 113
JUDGMENT APPEALED FROM:	[2020] VCC 809 (Judge Gaynor)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted on two charges of committing an indecent act with a child under the age of 16 years and two charges of sexual assault of a child under the age of 16 years – Child witness 12 years of age – Whether trial judge erred in permitting child witness to give evidence under affirmation – Whether child witness had capacity to understand obligation to give truthful evidence – Whether verdict on one of the charges of sexual assault of a child under the age of 16 years unreasonable – Verdict not unreasonable – Leave to appeal granted – Appeal dismissed – R v GW (2016) 258 CLR 108, R v Climas (1999) 74 SASR 411, Evidence Act 2008 s 13 considered.

CRIMINAL LAW – Appeal – Sentence – Applicant sentenced to 3 years’ imprisonment with non-parole period of 18 months – Whether order for cumulation excessive – Offending involved gross breach of trust – High moral culpability – Order for cumulation appropriate – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Ginsbourg	Randles Cooper & Co Pty Ltd
For the Respondent	Mr C B Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the joint reasons for judgment of Kaye and Weinberg JJA (‘the joint reasons’). I agree with the orders which their Honours propose. In relation to proposed ground 2 in the application for leave to appeal against conviction, and the proposed ground of appeal against sentence, I agree with the reasons which their Honours give for refusing leave to appeal.

In relation to the first proposed ground of appeal against conviction, however, my reasons differ to some extent from those given by their Honours. As explained in the joint reasons, this ground concerns the competence of the complainant (AK) to give sworn evidence (by affirmation). The contention is that the judge was in error in permitting her to do so.

In my opinion, the starting point for analysis of this complaint is the statutory presumption of competence. Under the Evidence Act 2008, every person is competent to give evidence unless the Act otherwise provides.[2] Specifically, a person is presumed to be competent (‘not incompetent’) to give sworn evidence ‘unless the contrary is…

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 113
Decision Date: 12 May 2020

CaseChat Overview and Summary

The applicant, referred to as Boyd Seymour, appealed against his conviction and sentence on charges related to the commission of indecent acts and sexual assault against a child under the age of 16 years. The case was heard in the High Court of Australia. The central issues before the court were whether the trial judge had erred in allowing a child witness to give evidence under affirmation and if the child witness possessed the requisite understanding of the obligation to provide truthful evidence. Additionally, the court examined whether the verdict on one of the charges of sexual assault was unreasonable.

The court determined that the trial judge did not err in permitting the child witness to testify under affirmation, as the child was deemed capable of understanding the obligation to give truthful evidence. The child's age and the circumstances were considered, and the court found that the verdict on the charge of sexual assault was not unreasonable, given the evidence presented. The court upheld the conviction on all charges and dismissed the appeal regarding the conviction. The sentencing aspect of the appeal, which questioned the order for cumulation, was also dismissed, as the court found the sentence to be appropriate given the nature and moral culpability of the offenses.

In conclusion, the appeal was dismissed in its entirety, and the original conviction and sentence were upheld. The court found no error in the trial judge's handling of the child witness's testimony and determined that the verdict was based on reasonable evidence. The sentence, which involved a 3-year imprisonment term with an 18-month non-parole period, was deemed appropriate for the gravity of the offenses.

Orders