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Choudhary v The Queen

Choudhary v The Queen

Case [2013] VSCA 325 21 November 2013

Appeal

Criminal Liability

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0019

ANU CHOUDHARY	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, PRIEST JA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	28 October 2013
DATE OF JUDGMENT	21 November 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 325

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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 16, indecent act with child under 16 – Convicted on four charges, acquitted of two – Whether verdicts inconsistent – Whether verdicts otherwise unsafe and unsatisfactory – Alleged admissions by appellant – Whether admissible – Whether judge’s directions adequate – Crown concession of error – Verdicts not unsafe – Retrial ordered – Evidence Act 2009 (Vic) s 137.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	Doogue O’Brien George
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Priest JA. I agree with the orders which his Honour proposes, for the reasons which he gives.

It is important to point out that it was Priest JA who first raised with counsel the question of the alleged admissions and the adequacy of the judge’s directions on that subject. Only then was the point taken by counsel for the appellant, and application subsequently made for leave to add a new ground of appeal. In the event, that is the only ground of appeal which has succeeded. The Crown’s prompt and unqualified concession of error is to be commended, as his Honour has said.

As Priest JA has pointed out, a matter of such importance to this trial should have been the subject of careful attention by both defence and prosecution, in order that the trial judge be given the necessary assistance. That is, of course, the policy which underpins the requirement in s 11 of the Jury Directions Act 2013 (Vic), that trial counsel specify what directions are required.

Lasry AJA has drawn attention to the fact that the inadequacy of the directions has resulted in a new trial being ordered, with all of the disadvantages which that carries for the participants and for the criminal justice system. This is, as his Honour points out, another example of the vital importance of the Charge Book, developed and maintained by the Judicial College of Victoria with substantial input from both appellate and trial judges. Recourse to the relevant part of the Charge Book by the participants in this trial would in all likelihood have resulted in this fatal error being avoided.

PRIEST JA:

Introduction

In written submissions provided following the conclusion of oral argument on the appeal, the respondent has conceded that, as a result of the failure of the trial judge to give adequate directions concerning the appellant’s alleged admissions, there has been a substantial miscarriage of justice and his convictions should be set aside.

That concession is, in my opinion, a fair and proper one to…

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 Choudhary v The Queen

Details

AGLC: Choudhary v The Queen [2013] VSCA 325
Case: [2013] VSCA 325
Decision Date: 21 November 2013

CaseChat Overview and Summary

The defendant, Choudhary, was convicted in the County Court of Victoria on four counts of sexual penetration and indecent acts with a child under 16 years old, but acquitted on two other charges. Choudhary appealed against his conviction to the Court of Appeal. The appeal centred on the consistency and safety of the verdicts, the admissibility of certain statements made by the appellant, and the adequacy of the judge's directions to the jury. The appellant argued that the verdicts were inconsistent and that the judge should have directed the jury to find him not guilty on the acquitted charges. The Crown conceded that the judge erred in not giving such a direction but argued that the error did not affect the safety of the verdicts.

The Court of Appeal considered whether the verdicts were inconsistent and whether they were otherwise unsafe and unsatisfactory. The Court found that the verdicts were not inconsistent but acknowledged that the judge should have directed the jury to find the appellant not guilty on the acquitted charges. However, the Court held that the error did not affect the safety of the verdicts. The Court also considered whether the appellant's alleged admissions were admissible and whether the judge's directions to the jury were adequate. The Court found that the alleged admissions were admissible and that the judge's directions were adequate.

The Court of Appeal allowed the appeal and ordered a retrial. The Court held that the error in the judge's directions meant that the verdicts were not safe and satisfactory, and a retrial was necessary. The Court also held that the alleged admissions were properly admitted and that the judge's directions to the jury were adequate. The Court noted that the appellant's convictions on four counts of sexual penetration and indecent acts with a child under 16 years old were not in issue, and a retrial was necessary only because of the error in the judge's directions. The Court ordered a retrial on the two acquitted charges only.

Orders