F C J v The Queen - [2012] VSCA 292

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0838

FCJ

THE QUEEN

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JUDGES:	BUCHANAN, BONGIORNO JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 April 2012
DATE OF JUDGMENT/ORDER:	6 December 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 292	1st revision 7 December 2012 page 15 para 45 (iv), line 1
JUDGMENT APPEALED FROM:	Unreported, Judge Duckett County Court of Victoria, Date of Sentence 21 August 2009

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CRIMINAL LAW – Sexual offences – Severance of counts – Accused might be prejudiced or embarrassed by the joinder of counts – Propensity direction required – Lie by the accused capable of disclosing consciousness of guilt – Direction by trial judge confusing – Verdict on one count unsafe and unsatisfactory – Failure to give the caution required by s 398 of the Crimes Act 1958 (Vic) did not cause a miscarriage of justice – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C W Beale SC	James Dowsley & Assocs (Frankston)
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Coghlan AJA.

BONGIORNO JA:

I also agree with Coghlan AJA.

COGHLAN AJA:

On 24 July 2009, the appellant was convicted in the County Court on the offences set out in the table below and on 21 August 2009 he was sentenced to the individual sentences as set out in the table. The total effective sentence was corrected on 25 August 2009.

Count on Presentment Offence Maximum Sentence Cumulation

4 Offer to enter into an agreement with a child for sexual services for payment [s 7(1) Prostitution Control Act (Vic)][1] 15 years [s 7(1) Prostitution Control Act1994 (Vic)] 3 years Base sentence

8 Offer to enter into an agreement with a child for sexual services for payment [s 7(1) Prostitution Control Act1994 (Vic)] 15 years [s 7(1) Prostitution Control Act1994 (Vic)] 3 years 3 months

13 Sexual penetration of a child under 16 [s 45(1) Crimes Act 1958 (Vic)] 10 years [s 45(2)(c) Crimes Act 1958 (Vic)] 4 years 12 months

14 Sexual penetration of a child under 16 [s 45(1) Crimes Act 1958 (Vic)] 10 years [s 45(2)(c) Crimes Act 1958 (Vic)] 2 years 4 months

15 Indecent act with or in the presence of a child under 16 [s 47(1) Crimes Act 1958 (Vic)] 10 years [s 47(1) Crimes Act 1958 (Vic)] 2 years 3 months
[1] The title of this Act was changed to the Sex Work Act 1994 as at 1 November 2010.

16 Offer to enter into an agreement with a child for sexual services for payment [s 7(1) Prostitution Control Act1994 (Vic)] 15 years [s 7(1) Prostitution Control Act 1994 (Vic)] 3 years 3 months

17 Indecent act with or in the presence of a child under 16 [s 47(1) Crimes Act 1958 (Vic)] 10 years [s 47(1) Crimes Act 1958 (Vic)] 2 years 3 months

18 Sexual penetration of a child under 16…

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 F C J v The Queen

Details

AGLC: F C J v The Queen [2012] VSCA 292
Case: [2012] VSCA 292
Decision Date: 6 December 2012

CaseChat Overview and Summary

The case before the court involved an appeal by an individual against their conviction on one count of sexual offences. The accused was convicted following a joint trial with another count. The appeal centred on the trial judge's handling of the severance of counts and the adequacy of the direction provided to the jury regarding the accused's propensity to commit the crime. The accused argued that the trial judge's direction was confusing and that the joinder of counts might have prejudiced or embarrassed them. Furthermore, the accused contended that a propensity direction was necessary because their lies could reveal consciousness of guilt.

The central legal issues before the court were whether the trial judge correctly assessed the need for severance of counts, if the direction given to the jury regarding propensity evidence was appropriate, and if the omission to give the caution required by section 398 of the Crimes Act 1958 (Vic) led to a miscarriage of justice. The court had to determine if the trial judge's direction was confusing and if it might have prejudiced or embarrassed the accused. Additionally, the court needed to examine whether the failure to give the cautionary direction under section 398 of the Act led to an unsafe and unsatisfactory verdict.

The court found that the trial judge's direction to the jury was confusing, which might have prejudiced or embarrassed the accused. The court held that a propensity direction was required as the accused's lies could demonstrate consciousness of guilt. However, the court concluded that the omission to give the caution under section 398 of the Act did not result in a miscarriage of justice, as the verdict on one count was deemed unsafe and unsatisfactory. The court determined that there was no point of principle involved in this matter, and therefore, the appeal was dismissed.

Orders