Curtis v The Queen - [2011] VSCA 102

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0582

RICHARD JAMES CURTIS	Applicant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, WEINBERG and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	29 March 2011
DATE OF JUDGMENT	15 April 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 102
JUDGMENT APPEALED FROM	R v Curtis (Unreported, County Court of Victoria, Judge Douglas, 1 April 2009)

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CRIMINAL LAW – Appeal – Conviction – Whether verdicts inconsistent – Sexual offences against child under 16 – Two complainants aged 14 and 15 respectively – Applicant acquitted with respect to older complainant, convicted with respect to younger – Whether applicant believed on reasonable grounds that each complainant was aged 16 or over – No inconsistency – Application refused – Crimes Act 1958 (Vic) s 47(2)(a).

WORDS AND PHRASES – ‘Indecent act’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C B Boyce	Grigor Lawyers
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA
HARPER JA:

After a trial before a County Court jury, the applicant was convicted of two counts of committing an indecent act with a child under the age of 16 and two counts of sexual penetration of a child under the age of 16. The complainant in each case was a girl of 14 (‘SL’). The applicant was acquitted of a further count of committing an indecent act with a child under the age of 16, alleged to have occurred on the same occasion as the other counts but to have involved a different complainant (‘KV’).

The applicant now seeks leave to appeal against conviction. For reasons which follow, we would refuse the application.

Inconsistent verdicts

The acquittal of the applicant on the indecent act count concerning KV arose in the following circumstances. At the urging of the applicant, the two complainants kissed. It was common ground that their participation was consensual. On the basis of this incident, the applicant was charged with two indecent act counts, one in relation to SL (the ‘SL count’) and the other in relation to KV (the ‘KV count’). The applicant’s defence in each case was that he had believed, on reasonable grounds, that the complainant was aged 16 or older.[1] The jury returned a guilty verdict on the SL count but acquitted the applicant on the KV count.
[1]Crimes Act 1958 (Vic) s 47(2)(a).

The contention for the applicant before this Court was that the guilty verdict on the SL count was irreconcilable with the verdict of acquittal on the KV count. The jury were evidently satisfied, on the balance of probabilities, that the applicant believed on reasonable grounds that KV was aged 16 or over. That being so, it was submitted, the jury acting reasonably would necessarily have come to the same conclusion as regards the applicant’s belief as to SL’s age. There was no rational basis for any different conclusion. The same analysis of the applicant’s belief would apply to the other counts…

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 Curtis v The Queen

Details

AGLC: Curtis v The Queen [2011] VSCA 102
Case: [2011] VSCA 102
Decision Date: 15 April 2011

CaseChat Overview and Summary

The case before the court was an appeal by Curtis against his conviction for sexual offences against a child under 16. Curtis was acquitted in relation to an older complainant, aged 15, but convicted for offences against a younger complainant, aged 14. The appeal challenged the consistency of the verdicts and the applicability of the defence that Curtis believed on reasonable grounds that each complainant was aged 16 or over, as required by section 47(2)(a) of the Crimes Act 1958 (Vic). Curtis argued that the verdicts were inconsistent, as they were based on the same act towards two complainants of similar ages. The court was required to determine if the verdicts were inconsistent and if Curtis' belief about the complainants' ages was reasonable.

The court found that the verdicts were not inconsistent because they were based on the complainants' ages at the time of the offences. The court held that the jury could reasonably convict Curtis for offences against the younger complainant while acquitting him for offences against the older complainant. The court further examined whether Curtis' belief that the complainants were 16 or over was reasonable. It found that Curtis had no actual knowledge of the complainants' ages and could not be expected to have known their ages precisely. The court concluded that Curtis' belief was reasonable given the circumstances.

The court refused the application, holding that the verdicts were not inconsistent and that Curtis' defence was applicable. The court emphasised that the key factor was the complainants' ages at the time of the offences, not the absolute ages. The court also considered the definition of 'indecent act' under the Crimes Act 1958 (Vic) and found that the offences were correctly classified. The court did not find any errors in the trial process or in the jury's consideration of the evidence. The court's decision was based on the reasonable interpretation of the evidence and the law as applied to the facts of the case.

Orders