GA v The Queen

[2013] HCASL 18

GA

V

THE QUEEN

[2013] HCASL 18
M66/2012

1. The applicant was convicted following a trial before the County Court of Victoria (Judge Taft and a jury) of one count of sexual penetration of a child under the age of 16[1].  On 8 November 2011 he was sentenced to a term of 32 months' imprisonment of which 20 months were suspended for a period of three years.  The applicant appealed against his conviction on the ground that the verdict was unreasonable or could not be supported having regard to the evidence[2].  On 12 June 2012 the Court of Appeal (Neave, Osborn JJA and King AJA) dismissed the appeal.  The applicant applies for special leave to appeal contending that the Court of Appeal failed to correctly apply the test in M v The Queen[3]. 

   [1]Crimes Act 1958 (Vic), s 45(1).

   [2]Criminal Procedure Act 2009 (Vic), s 276(1)(a).

   [3](1994) 181 CLR 487; [1994] HCA 63.

2. The complainant was aged 14 at the date of the offence.  The applicant was the stepfather of one of her school friends.  The allegation came to light after the complainant told two school friends, P and U, that she had had sexual relations with the applicant.  The matter was reported to the police and the complainant was interviewed.  She gave an account that she had had sexual intercourse on one occasion with the applicant.  That allegation gave rise to the charge.  The complainant gave evidence of one episode of sexual intercourse.  P gave evidence that the complainant had reported having sexual relations with the applicant "three or four times".  U gave evidence that the complainant stated that she had sex with the applicant "more than once".  The prosecution tendered evidence of a number of explicitly sexual text messages sent by the applicant to the complainant in the period following the offence. 

3. The applicant's wife gave evidence that the applicant suffered from a condition known as "restrictive foreskin", which caused his penis to swell and become noticeably reddened following intercourse.  She had not observed either of these signs on the evening of the occasion when the offence is said to have occurred. 

4. The Court of Appeal set out the test for determining whether a jury verdict is unreasonable from the joint reasons in M v The Queen[4].  The Court went on to cite R v Vjestica for the proposition "it is not enough merely to show that the evidence given at the trial is open to criticism" and that a conviction would not be quashed "even if the members of the Court of Criminal Appeal do not feel that they themselves would have regarded it as necessarily establishing guilt"[5].

   [4]GA v The Queen [2012] VSCA 108 at [48] citing M v The Queen (1994) 181 CLR 487 at 493-494 per Mason CJ, Deane, Dawson and Toohey JJ.

   [5]GA v The Queen [2012] VSCA 108 at [50] citing R v Vjestica (2008) 182 A Crim R 350 at 370 [63]-[64] per Maxwell P.

5. The applicant applies for special leave submitting that the statements in Vjestica are inconsistent with the test enunciated in M v The Queen and SKA v The Queen[6]. 

   [6](2011) 243 CLR 400 at 405-406 [11]-[14] per French CJ, Gummow and Kiefel JJ; [2011] HCA 13.

6. This application does not provide the occasion to consider whether the statements in Vjestica depart from the principles enunciated by this Court in M v The Queen and SKA v The Queen.  The Court of Appeal viewed the whole of the recorded evidence and read the transcript of the trial.  The Court of Appeal concluded that the prosecution case was "a strong one"[7].  The Court provided cogent reasons for this conclusion.  If special leave to appeal were granted the appeal would have insufficient prospects of succeeding.

   [7]GA v The Queen [2012] VSCA 108 at [51].

7. The application is dismissed.

8. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
26 February 2013 V.M. Bell