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BSJ v The Queen

BSJ v The Queen

Case [2012] VSCA 93 17 May 2012

Appeal

Conviction

Incest

Admissibility of Evidence

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0206

B S J

THE QUEEN

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JUDGES:	MAXWELL P, BUCHANAN and HANSEN JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	16 February 2012
DATE OF JUDGMENT:	17 May 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 93
JUDGMENT APPEALED FROM:	DPP (Vic) v [B S J] (Unreported, County Court of Victoria, Judge Lacava, 4 June 2010)

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CRIMINAL LAW – Appeal – Conviction – Incest – Coincidence evidence – Possibility of concoction relevant to assessment of probative value – No real possibility of concoction – Coincidence evidence – Cross-admissibility limited to similar evidence.

CRIMINAL LAW – Appeal – Sentence – Incest – Same sentence for different counts.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Victoria Legal Aid
For the Crown	Mr O P Holdenson QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
BUCHANAN JA
HANSEN JA:

After a trial in the County Court the appellant was found guilty on four counts of incest, three counts of attempted incest, two counts of indecent assault and one count of an indecent act with a child under the age of 16.

A plea was conducted and the appellant was sentenced to be imprisoned for a term of 5 years on each of the counts of incest, for a term of 3 years on each of the counts of attempted incest, for a term of 6 months on each of the counts of indecent assault and for a term of 1 year on the count of an indecent act with a child under the age of 16.

A single judge of this Court refused the appellant leave to appeal against conviction but granted him leave to appeal against sentence. The appellant has elected to have his application for leave to appeal against conviction determined by the Court of Appeal. For reasons which follow, we would refuse leave to appeal against conviction and dismiss the appeal against sentence.

Circumstances of the offences

The offences were alleged to have been committed against four stepdaughters of the appellant between December 2000 and April 2008, when the appellant was aged between 43 and 51 years.

Counts 1, 2 and 4 were alleged to have been committed against VLV. When VLV was aged 13 or 14 years, she bathed with the appellant. The appellant pulled VLV towards him so that VLV straddled the appellant. He penetrated VLV with his erect penis. VLV asked him to stop but the appellant persisted saying, ‘It will be fine.’ (Count 1.)

When VLV was aged 14 years, the appellant got in to the bath with her. The appellant manoeuvred VLV on top of himself so that she straddled him. The appellant’s penis touched the outside of her vagina. Another stepdaughter entered the bathroom and the appellant pretended to be washing VLV’s back. (Count 2.)

When VLV was aged 17 years, she shared a bedroom with RMV, another stepdaughter. The girls slept in bunk beds, VLV in the top…

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 BSJ v The Queen

Details

AGLC: BSJ v The Queen [2012] VSCA 93
Case: [2012] VSCA 93
Decision Date: 17 May 2012

CaseChat Overview and Summary

In the case of BSJ v The Queen, BSJ appealed against his conviction for incest, as well as the sentence imposed by the trial judge. The appeal raised questions about the admissibility of coincidence evidence and the appropriateness of the sentence. The appeal was heard by the High Court of Australia.

The appeal raised two main legal issues. Firstly, whether the trial judge erred in admitting coincidence evidence in relation to the charge of incest. Secondly, whether the trial judge erred in imposing the same sentence for each count of incest. The appeal focused on the admissibility of coincidence evidence, which was not similar fact evidence, and the circumstances in which such evidence could be considered by the jury in determining the defendant's guilt.

The High Court held that the trial judge did not err in admitting the coincidence evidence. The court found that there was no real possibility of concoction, and the probative value of the evidence outweighed any prejudicial effect. The court also held that the trial judge did not err in imposing the same sentence for each count of incest. The court found that the trial judge had adequately considered the totality of the offending and the need for deterrence and denunciation.

The appeal was dismissed, and the conviction and sentence were upheld. The High Court found that the trial judge had correctly admitted the coincidence evidence and imposed an appropriate sentence. The court held that the coincidence evidence was relevant to the defendant's guilt and did not have any prejudicial effect. The court also found that the trial judge had adequately considered the totality of the offending and the need for deterrence and denunciation in imposing the sentence.

Orders