Clifton (a pseudonym) v The Queen - [2021] VSCA 111

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0002

DALTON CLIFTON (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.

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JUDGE:	PRIEST, KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2021
DATE OF JUDGMENT:	4 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 111
JUDGMENT APPEALED FROM:	DPP v [Clifton] (Unreported, County Court of Victoria, Judge Murphy, 29 March 2019) (Conviction)

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CRIMINAL LAW — Appeal — Conviction — Sexual penetration and indecent act with child under 16 — Course of conduct charges — Elements — Particulars — Whether failure to direct adequately on ‘course of conduct’ and ‘specified period’ — Leave to appeal refused — Criminal Procedure Act 2009 sch 1 cl 4A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms G Connelly	Ann Valos Criminal Law Pty Ltd
For the Respondent:	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA
T FORREST JA:

Introduction

Following a trial, on 29 March 2019 a jury empanelled in the County Court found the applicant guilty[2] of sexual penetration of a child under 16 years[3] (charge 1); indecent act with a child under 16 years[4] (charges 2 and 3, both being course of conduct charges); and common assault[5] (charge 6).[6] The jury acquitted him of three further charges of committing an indecent act with or in the presence of a child under 16 (charges 4, 5 and 7).[7]
[2]The verdict on charge 1 was unanimous, the verdicts on charges 2, 3 and 6 being by majority.
[3]Crimes Act 1958, s 45(1).
[4]Crimes Act 1958, s 47(1).
[5]Common Law.
[6]On 6 August 2019, the judge sentenced the applicant to be imprisoned for four years on charge 1; two years and six months on charge 2; three years and six months on charge 3; and seven days on charge 6. Orders for cumulation resulted in a total effective sentence of six years, upon which the judge fixed a non-parole period of four years.
[7]These verdicts were unanimous.

The applicant seeks leave to appeal against conviction on two grounds:

1. A substantial miscarriage of justice was occasioned by the jury being permitted to rely on the conduct constituting charge 1 as an incident forming part of the course of conduct alleged in charge 3.
2. A substantial miscarriage of justice was occasioned by the jury being misinformed and/or inadequately directed as to the requirements for finding of a course of conduct over the period specified in the indictment.
Particulars:
(a) The prosecutor incorrectly told the jury that to find the applicant guilty of charge 2 or 3 the prosecution only had to prove that incident happened more than once; and/or
(b) The trial judge, in his charge, repeated the prosecutor’s incorrect submission, incorporated it into his directions and failed to tell the jury it was wrong; and/or
(c) The trial judge told the jury that…

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 Clifton (a pseudonym) v The Queen

Details

AGLC: Clifton (a pseudonym) v The Queen [2021] VSCA 111
Case: [2021] VSCA 111
Decision Date: 4 May 2021

CaseChat Overview and Summary

In the case of Clifton v The Queen, the appellant was convicted of sexual penetration and an indecent act with a child under the age of 16. The dispute centred on the adequacy of the trial judge's direction to the jury regarding the elements of the charges, particularly the interpretation of 'course of conduct' and the 'specified period'. The appeal was brought before the court seeking to overturn the conviction on the basis that the trial judge had not properly directed the jury on these key elements of the charges. The primary issue the court had to decide was whether the trial judge's direction to the jury was sufficient to ensure that they understood the necessary criteria for a conviction under the charges of sexual penetration and indecent act with a child under 16.

The court examined the trial judge's directions to the jury and considered whether they were adequate to ensure that the jury understood the requirement that the acts charged occurred within a 'course of conduct' and during a 'specified period'. The court found that the trial judge had sufficiently directed the jury on these elements, and that the jury was adequately informed of the requirements of the charges. The court concluded that the trial judge's directions were sufficient and that the jury would have been able to properly consider the evidence in light of these directions. The court further found that the failure to more explicitly direct the jury on these elements did not result in a miscarriage of justice, and that the conviction should stand.

The court refused leave to appeal, finding that the appeal did not raise a question of law of general public importance. The court held that the trial judge's direction to the jury was sufficient to ensure that they understood the elements of the charges, and that the conviction should be upheld. The appeal was dismissed, and the conviction was affirmed. The court did not make any further orders.

Orders