Brody Harley (a pseudonym)[1] v The Queen - [2018] VSCA 36

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0001

BRODY HARLEY (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, 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, NIALL JA and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 February 2018
DATE OF ORDERS:	13 February 2018
DATE OF JUDGMENT:	26 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 36
JUDGMENT APPEALED FROM:	DPP v [Harley (a pseudonym)] (Unreported, County Court of Victoria, Judge Mullaly, 9 August 2017 (Conviction))

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CRIMINAL LAW – Appeal – Conviction – Indecent act with child under 16 – Whether verdict unreasonable – Oath-on-oath case – Whether good character and post-offence conduct inconsistent with guilt – Where credibility of complainant unchallenged on appeal – Open to jury to accept complainant’s account – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Lethbridges Barristers and Solicitors
For the Crown	Mr J Gullaci	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Niall JA. It was for the reasons which his Honour gives that I, too, joined in the order refusing leave to appeal.

NIALL JA:

Overview

On 9 August 2017, the applicant was convicted by a County Court jury on a single count of indecent act with a child under the age of 16. The applicant seeks leave to appeal his conviction on the ground that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.

On 13 February 2018, the Court refused the application for leave to appeal and indicated that it would publish its reasons at a later date. These are my reasons for agreeing in that order.

In summary, having reviewed the totality of the evidence and the submission in support of the application, I was not satisfied that it was reasonably arguable that the jury must, as distinct from might, have entertained a doubt about the applicant’s guilt.

The trial and the application for leave to appeal

Before recounting some critical aspects of the evidence, it is useful to encapsulate the Crown case, the defence response at trial, and the matters advanced by the applicant in support of his application for leave to appeal.

The alleged incident occurred on 13 October 2014. The complainant was then 8 years of age. The Crown alleged that the applicant, whilst looking after the complainant at his home, removed her pants, took her into his bedroom, blew ‘raspberries’ on her stomach, removed her underpants, blew into her mouth, and

then licked her vagina four times. The complainant became upset. The applicant then called the complainant’s mother, who said she would collect her

When the complainant’s mother arrived at the applicant’s home, the complainant was showing obvious signs of distress but did not tell her…

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: [2018] VSCA 36
Decision Date: 26 February 2018

CaseChat Overview and Summary

Brody Harley appealed his conviction for engaging in an indecent act with a child under 16, contending that the verdict was unreasonable and inconsistent with the accused's good character and post-offence conduct. The appeal was heard in the High Court of Australia, which reviewed the trial judge's handling of the case, the weight of the evidence, and the jury's decision.

The court examined whether the verdict was unreasonable, considering the complainant's unchallenged credibility, and whether the accused's good character and post-offence conduct could be considered in an oath-on-oath case. The High Court found that it was open to the jury to accept the complainant's account of events, given her credibility was not challenged on appeal. The court also noted that while good character and post-offence conduct could be relevant, they did not preclude a guilty verdict if the evidence supported it.

The High Court upheld the appeal's dismissal and refused leave to appeal. The court emphasised that in an oath-on-oath case, the jury's role was to assess the credibility of the witnesses and the evidence presented. The accused's good character and post-offence conduct were not sufficient to override the complainant's unchallenged testimony. The final orders of the court were to dismiss the appeal and refuse leave to appeal, thereby upholding the conviction.

Orders