Darren Chester (a pseudonym)[1] v The Queen - [2020] VSCA 254

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0101

DARREN CHESTER (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	BEACH, KAYE and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 August 2020
DATE OF JUDGMENT:	28 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 254
JUDGMENT APPEALED FROM:	[2018] VCC 1713 (Judge Gucciardo)

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CRIMINAL LAW – Appeal – Conviction – Application for leave to appeal against conviction – Complainant biological daughter of applicant – Complainant has intellectual disability – Applicant charged with incest and indecent acts with child under 16 – Offences alleged between 1996 and 2002 when complainant aged between eight and 14 years –Applicant convicted of two charges of incest and one charge of indecent assault – Applicant acquitted on ten other charges – Whether verdicts of guilty unreasonable and could not be supported having regard to the evidence – Crown case reliant on evidence of complainant – Substantial inconsistencies in complainant’s evidence – Whether any rational basis for distinguishing between counts – Application for leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Connolly	Stary Norton Halphen
For the Respondent	Ms A Ellis	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

The background of this matter is set out in the reasons for judgment of Emerton JA, which I have had the benefit of reading. The detail in her Honour’s reasons relieves me of the obligation of setting out much of the background to this proceeding, and I gratefully adopt her Honour’s summary of the evidence and the issues between the parties.

The applicant was tried in the County Court on 13 charges of sexual offending against his daughter between 1996 and 2002, when she was aged between eight and 14 years. The jury acquitted him of ten of the charges, but found him guilty on three charges (charges 5, 6 and 13).

The applicant’s sole ground of appeal against his convictions is that the guilty verdicts returned on charges 5, 6 and 13 were illogical and unreasonable having regard to the not guilty verdicts returned on the other ten charges.

Emerton JA would grant leave to appeal, allow the appeal in relation to charge 6, but dismiss the appeal in relation to charges 5 and 13. I agree with her Honour that leave to appeal should be granted. I also agree that the appeal should be dismissed in respect of charges 5 and 13. I disagree with her Honour, however, in relation to charge 6. For the reasons which follow, I would dismiss the appeal in relation to that charge as well.

The Crown case

The Crown case was heavily dependent upon the evidence of the complainant, who has an intellectual disability. Her evidence was recorded at a special…

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.

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Details

Case: [2020] VSCA 254
Decision Date: 28 September 2020

CaseChat Overview and Summary

Darren Chester (a pseudonym) appealed against his conviction for incest and indecent acts with a child under 16, committed between 1996 and 2002. The complainant was the biological daughter of Chester, who had an intellectual disability. Chester was acquitted on ten other charges but convicted of two counts of incest and one count of indecent assault. The appeal concerned whether the verdicts were unreasonable and could not be supported by the evidence, as the Crown's case relied heavily on the complainant's testimony, which had substantial inconsistencies. The appeal also questioned whether there was any rational basis for distinguishing between the counts.

The primary legal issues were whether the verdicts were unreasonable and whether there was any rational basis for distinguishing between the counts. The court examined the complainant's evidence, noting inconsistencies and the impact of her intellectual disability on her reliability. The court also considered whether the evidence supported the distinctions made between the different charges. The appeal hinged on whether the jury could have reasonably concluded that Chester was guilty based on the evidence presented.

The court found that the inconsistencies in the complainant's evidence did not render the verdicts unreasonable. The court held that the jury was entitled to consider the complainant's evidence, despite its inconsistencies, and could reasonably conclude that Chester was guilty. The court also found that there was a rational basis for distinguishing between the counts, as the charges involved different acts and time periods. Consequently, the application for leave to appeal was granted, but the appeal was ultimately dismissed.

No additional orders were made beyond the dismissal of the appeal.

Orders