G A v The Queen - [2012] VSCA 108

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0282

GA	Appellant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE, OSBORN JJA AND KING AJA
WHERE HELD	GEELONG
DATE OF HEARING	31 May 2012
DATE OF JUDGMENT	12 June 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 108
JUDGMENT APPEALED FROM	DPP v [GA] (Unreported, County Court of Victoria, Judge Taft, 17 August 2011 (date of conviction))

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CRIMINAL LAW − Conviction − Appellant convicted of one count of sexual penetration of a child under the age of 16 years − Whether jury verdict unreasonable and cannot be supported by the evidence − Appeal dismissed.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Appellant	Mr P Morrissey SC	Brown McComish Lawyers
For the Respondent	Ms D Piekusis	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:
OSBORN JA:
KING AJA:

The appellant, GA, was convicted by a unanimous County Court jury of one count of sexual penetration of a child under the age of 16 years, contrary to s 45(1) of the Crimes Act 1958. He now appeals, with leave, against that conviction.

GA, who was 27 at the time of the alleged offence on 11 July 2010, lived in Warrnambool with his wife, his three step daughters and his two sons with his wife. The complainant, TT, was a close friend of GA’s eldest step daughter, A. TT was 14 years old at the time of the offence.

The offence came to light after TT told two school friends, U and P, that she had a relationship with GA and had had sex with him. U subsequently told a school counsellor, who in turn notified police. TT was interviewed by police on 16 September 2010.

The Crown case at trial

The Crown led evidence from TT, her two friends U and P, GA’s wife and TT’s mother. It also tendered a series of text messages between TT and GA. Some of the texts from GA were sexually explicit. The texts and telephone records showed that there had been around two and a half thousand interactions between GA and TT in a three-month period from June 2010.

GA did not give evidence at trial, although his record of interview was tendered by the Crown.

TT’s evidence

In her VARE[1] tape, TT said that her best friend was GA’s step daughter, A. She said that she often stayed with their family, and had become ‘really, really good friends’ with GA.
[1]Video and audio-recorded evidence.

TT told police that she had stayed with GA’s family for the entire two week school holiday in July. On the last day of the holidays, which was a Sunday, GA’s wife was visiting Melbourne with their children and at around 10 am, GA dropped A at her boyfriend’s house. He returned home where TT was alone.

TT said that after around five minutes passed, she was lying on a bed and GA ‘got on top of [her]’, and they had intercourse. He kissed her, and she kissed him back.…

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 G A v The Queen

Details

AGLC: G A v The Queen [2012] VSCA 108
Case: [2012] VSCA 108
Decision Date: 12 June 2012

CaseChat Overview and Summary

The appellant in this case was convicted of one count of sexual penetration of a child under the age of 16 years. The conviction was brought to appeal on the basis that the jury's verdict was unreasonable and could not be supported by the evidence. The matter was heard in the High Court of Australia, which was required to determine the validity of the appeal.

The legal issue before the court was whether the jury's verdict was unreasonable and unsupported by the evidence. The appellant argued that the evidence was insufficient to support a conviction beyond reasonable doubt, and that the verdict was therefore unreasonable. The Crown, on the other hand, contended that the evidence was sufficient to support the verdict, and that the jury had properly considered the evidence before them.

The court held that the jury's verdict was not unreasonable and was supported by the evidence. The court found that the evidence, when viewed as a whole, was sufficient to establish the appellant's guilt beyond reasonable doubt. The court further found that the jury had properly considered the evidence before them, and that there was no basis for interfering with the verdict. The appeal was therefore dismissed.

The High Court of Australia dismissed the appeal and upheld the conviction of the appellant. The court found that the evidence was sufficient to support the jury's verdict, and that the verdict was not unreasonable. The conviction stands, and the appellant's appeal is unsuccessful.

Orders