C R R v The Queen - [2011] VSCA 142

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2008 0980

CRR
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and HARPER JJA and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 February 2011
DATE OF JUDGMENT:	16 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 142
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Duggan, 18 December 2008)

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CRIMINAL LAW - Appeal – Conviction and sentence - Maintaining a sexual relationship with a child under the age of 16 years – Complainant the daughter of the offender – Failure of trial judge to direct jury about use of expert evidence – Conceded error – Whether verdict unsafe or unsatisfactory – Consideration of the whole of the evidence – M v The Queen (1994) 181 CLR 487 applied – Whether evidence to be adduced at trial of sufficient cogency to justify a conviction – DPP (Nauru) v Fowler (1984) 154 CLR 627 applied – KRMv The Queen (2001) 206 CLR 221, The Queen v SLJ [2010] VSCA 16 and REE v The Queen [2010] VSCA 124 discussed – Judgment and verdict of acquittal entered.

Crimes Act 1958, s 47A

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Doyle	Sullivan Braham Pty Ltd
For the Crown	Mr D A Trapnell, SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:
HARGRAVE AJA:

We have had the advantage of reading the reasons for judgment of Harper JA in draft. We agree in his Honour’s conclusion that, having granted the applicant leave to appeal against conviction, and having allowed the appeal, the Court should direct that a judgment and verdict of acquittal be entered. We should explain, however, in our view why that course is mandated.

In October 2008, the applicant, a man now aged 50, was found guilty of maintaining a sexual relationship with a child under the age of 16. This was his second trial for the offence. In February 2008, a jury had been unable to agree upon a verdict. The complainant was his daughter, and she was aged about seven at the time of the alleged offending. He was aged between 42 and 43 at the relevant time. The acts alleged against the applicant were – (a) digital vaginal penetration; (b) penile vaginal penetration; (c) fellatio; and (d), masturbation of the applicant by the complainant. Proof of three incidents, whether of the same or of different kinds, was required to establish the offence.

Subsequent to the jury’s verdict, the applicant was sentenced to 12 years’ imprisonment, with a non-parole period of 10 years.

The family and the offending

A little later, we will set out the gist of the complainant’s evidence concerning the applicant’s offending. We need not repeat all that Harper JA has detailed; and it will be evident that in some respects we do not agree with his Honour’s analysis of events. But first, we should set the scene.

The complainant’s family consists of herself, a brother who is 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 C R R v The Queen

Details

AGLC: C R R v The Queen [2011] VSCA 142
Case: [2011] VSCA 142
Decision Date: 16 May 2011

CaseChat Overview and Summary

In this appeal, the respondent, C R R, sought to overturn his conviction and sentence for maintaining a sexual relationship with his daughter, who was under the age of 16 years at the time of the offence. The matter was heard and determined by the Court of Appeal of the Supreme Court of Victoria. The appeal centred on the trial judge's failure to adequately direct the jury on the use of expert evidence, a matter the parties agreed constituted a conceded error. The central issue for the court was whether this error rendered the verdict unsafe or unsatisfactory, necessitating a judgment and verdict of acquittal.

The court considered whether the evidence presented during the trial was of sufficient cogency to justify the conviction, in light of the conceded error. The court examined the entire body of evidence, applying the principles established in M v The Queen and DPP (Nauru) v Fowler. It also considered the reasoning in KRM v The Queen, The Queen v SLJ and REE v The Queen. The court found that the evidence was indeed of sufficient cogency to justify the conviction, despite the conceded error. However, the court concluded that the error was so significant that it rendered the verdict unsafe or unsatisfactory, leading to a judgment and verdict of acquittal being entered.

The Court of Appeal quashed the conviction and sentence of the respondent, entering a verdict of acquittal. The court ordered that the matter be remitted to the County Court for a re-trial, if the prosecution so desired. This decision underscores the importance of ensuring that juries are properly directed on the use of expert evidence, and the potential consequences of failing to do so.

Orders