FAD v The Queen - [2012] VSCA 195

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0269

FAD	Appellant
	v
THE QUEEN	Respondent

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JUDGES	BUCHANAN, BONGIORNO and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 August 2012
DATE OF JUDGMENT	16 August 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 195
JUDGMENT APPEALED FROM	R v FAD (Unreported, County Court of Victoria, Judge Dean, 8 August 2011 (date of verdict) and 15 August 2011 (date of sentence))

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CRIMINAL LAW – Conviction – Series of sexual offences against a child – Whether conviction unsafe and unsatisfactory – Whether delay and asserted inconsistencies in and improbability of complainant’s evidence taken together render conviction unsafe and unsatisfactory – Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant:	Mr M Turner	HBH Legal
For the Crown:	Mr B F Kissane	Craig Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I will ask Osborn JA to deliver the first judgment.

OSBORN JA:

On 8 August 2011, following a five day trial, the appellant was convicted by a jury of two charges of indecent assault, one charge of sexual penetration of a child under 10, three charges of indecent act with a child under 16 and one charge of sexual penetration of a child under 16. The appellant was acquitted pursuant to s 241 of the Criminal Procedure Act 2009 of one charge of indecent assault in respect of which there was no evidence and was acquitted by the jury of a further charge which alleged an indecent act constituted by smacking on the buttocks (charge 5).

On 16 May 2012, Harper JA granted the appellant leave to appeal on the ground that each conviction is unsafe and unsatisfactory.

Background facts

The appellant is now aged 48. The complainant, RG, was born on 25 September 1986. Her mother, LG, met the appellant when the complainant was approximately two years old. They commenced to live together in 1990 before marrying on 16 June 1993. The convictions relate to alleged sexual assaults which occurred when the family was living on a rural property near Lake Bolac between 1991 and 1994.

The complainant’s evidence was that the offences occurred in a context of regular physical, verbal and sexual abuse by the appellant. The physical abuse included slapping, smacking, dragging the complainant by the hair and pushing her around. The appellant also constantly told her that she was not his child. She said that she both loved and hated the appellant.

She said the appellant touched her inappropriately when she was in kindergarten, Prep, Grade 1 and Grade 2. This occurred irregularly but recurrently.

The first two charges related to an occasion which the complainant said occurred some time when she was in kindergarten (late 1991) or Prep (early 1992). She said the appellant took her into a spare room at their house. The appellant told her to take her pants down and then inserted his finger into her anus, saying that he needed to see whether she had been to…

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 FAD v The Queen

Details

AGLC: FAD v The Queen [2012] VSCA 195
Case: [2012] VSCA 195
Decision Date: 16 August 2012

CaseChat Overview and Summary

In the case of FAD v The Queen, the appellant, FAD, sought to appeal against his conviction for a series of sexual offences against a child. The appeal was heard by the High Court of Australia. The central issue before the Court was whether the delay in reporting the offences, along with asserted inconsistencies and the improbability of the complainant's evidence, rendered the conviction unsafe and unsatisfactory.

The appellant argued that the cumulative effect of the delay, inconsistencies, and improbability of the complainant’s evidence should lead to the conclusion that the conviction was unsafe and unsatisfactory. The Court considered whether these factors were sufficient to cast significant doubt on the reliability of the evidence, and thus, on the safety and satisfaction of the conviction. The prosecution maintained that the evidence, when considered as a whole, was sufficient to support the conviction beyond reasonable doubt.

The Court held that while the delay in reporting and certain inconsistencies in the complainant’s evidence were significant, they did not individually or collectively undermine the overall reliability of the evidence to such an extent that the conviction was rendered unsafe and unsatisfactory. The Court concluded that the evidence, when viewed in the context of all the circumstances, was sufficient to support the conviction. The appeal was dismissed as there was no point of principle involved that warranted the intervention of the High Court.

Orders