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Dibbs v The Queen

Dibbs v The Queen

Case [2012] VSCA 224 19 September 2012

Conviction

Appeal

Sentence

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0182

DARYLL DIBBS
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and HARPER JJA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 August 2012
DATE OF JUDGMENT:	19 September 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 224
JUDGMENT APPEALED FROM:	DPP v Dibbs (Unreported, County Court of Victoria, Judge Mullaly, 9 August 2011 (date of conviction) and 12 August 2011 (date of sentence))

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CRIMINAL LAW – Conviction – Two charges of sexual penetration of a child under 10, two charges of gross indecency and one charge of indecent assault – Two male complainants – Offences committed more than 30 years ago – Whether jury verdicts on the two charges of sexual penetration of a child under 10 were unsafe and unsatisfactory – Whether sufficient evidence on which the jury could make findings about the age of one of the complainants – Appeal allowed and convictions set aside on those charges – Exercise of the power to enter a conviction for another offence – Criminal Procedure Act 2009, s 277(1)(c) – Convictions entered for indecent assault of a male person (s 68(3A) Crimes Act 1958) and sexual penetration of a child between 10 and 16 (s 48(1) Crimes Act 1958).

EVIDENCE – Tendency evidence – Whether admissions made by the appellant in relation to one complainant cross admissible as tendency evidence in relation to the other complainant – Whether evidence had significant probative value – Whether any substantial miscarriage of justice where other tendency evidence admissible and not the subject of appeal.

CRIMINAL LAW – Sentence – Offender re-sentenced to total effective sentence of three years three months – Non-parole period of two years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Doyle	Revill & Papa Lawyers
For the Respondent	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I agree, for the reasons given by Harper JA, that this appeal should be allowed, and that the appellant be re-sentenced as his Honour proposes.

HARPER JA:

The fair, even-handed and compassionate administration of criminal justice according to law is as difficult as any aspect of civilised governance. And, of all the myriad forms of wrongdoing of which humankind is capable, sexual misconduct presents difficulties in its detection, punishment and restorative aspects which are as problematic as any that confront the criminal courts. This case, although by no means as complicated as some, illustrates the point.

On 9 August 2011, following a trial in the County Court, the appellant was convicted of two charges of sexual penetration of a child under the age of 10 (charges 1 and 2), one charge of gross indecency of a child under the age of 16 (charge 5), and one charge of indecent assault, again of a child under the age of 16 (charge 6). He had earlier (on his arraignment on 1 August 2011)[1] pleaded guilty before the jury panel to one charge of gross indecency…

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 Dibbs v The Queen

Details

AGLC: Dibbs v The Queen [2012] VSCA 224
Case: [2012] VSCA 224
Decision Date: 19 September 2012

CaseChat Overview and Summary

In Dibbs v The Queen, the appellant was convicted of two charges of sexual penetration of a child under 10, two charges of gross indecency and one charge of indecent assault. The offences were committed over 30 years ago by the appellant against two male complainants. The appellant appealed against his convictions on the grounds that the jury verdicts on the two charges of sexual penetration of a child under 10 were unsafe and unsatisfactory and that there was not sufficient evidence on which the jury could make findings about the age of one of the complainants. The appeal was allowed, and the convictions set aside on those charges.

The court was required to consider whether the jury verdicts on the two charges of sexual penetration of a child under 10 were safe and satisfactory and whether there was sufficient evidence to establish the age of one of the complainants. The court found that the verdicts were unsafe and unsatisfactory as the evidence did not support a finding that the appellant had sexual intercourse with one of the complainants. Additionally, the court found that there was not sufficient evidence to establish the age of one of the complainants at the time of the offences.

The court exercised its power under section 277(1)(c) of the Criminal Procedure Act 2009 to enter a conviction for another offence. The court found the appellant guilty of indecent assault of a male person under section 68(3A) of the Crimes Act 1958 and sexual penetration of a child between 10 and 16 under section 48(1) of the Crimes Act 1958. The appellant was re-sentenced to a total effective sentence of three years and three months imprisonment, with a non-parole period of two years.

The court's decision highlights the importance of ensuring that jury verdicts are safe and satisfactory and that there is sufficient evidence to support a conviction. Additionally, the court's exercise of its power to enter a conviction for another offence demonstrates the flexibility of the criminal justice system in ensuring that justice is served.

Orders