13 December 2012 [1st Revision, 17 December 2012, [92] n 47]
MEDIUM NEUTRAL CITATION
[2012] VSCA 306
JUDGMENT APPEALED FROM
DPP (Vic) v Greensill (Unreported, County Court of Victoria, Judge Cannon
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CRIMINAL LAW – Appeal – Conviction and sentence – Sexual offences – Nine counts of indecent assaults against two children under ten – Children were former students 30 years ago – Whether open on the whole of the evidence for the jury to be satisfied beyond reasonable doubt – Whether trial judge erred in failing to give a forensic disadvantage direction – Section 61 Crimes Act 1958 and Section 165B Evidence Act 2008 considered and compared – No request made to give forensic disadvantage direction – Obligation of trial judge to give such directions as are essential to avoid a miscarriage of justice discussed -Whether 'fresh evidence' adduced after trial demonstrated a substantial miscarriage of justice – Whether verdicts unsafe and unsatisfactory – Appeal allowed – Verdicts unsafe and unsatisfactory – Convictions and sentence quashed – Verdicts of acquittal entered.
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Appearances:
Counsel
Solicitors
For the Appellant
Mr L C Carter with Mr M D Stanton
Robert Stary Lawyers
For the Crown
Mr G J C Silbert SC
Mr C Hyland, Solicitor for Public Prosecutions
REDLICH JA OSBORN JA PRIEST JA:
Orders on the appeal
At the conclusion of oral argument, on 22 November 2012 the Court made orders granting the application for leave to appeal against conviction and allowing the appeal. We ordered that the convictions and sentences be quashed, and a judgment of acquittal be entered on each count upon which the appellant was found guilty at trial.[1] The Court announced that it would later provide reasons for the orders. These are those reasons.
Following an 11 day trial in the County Court, on 9 June 2010 the appellant was convicted of nine counts of indecent assault. Seven of those counts involved ‘RS’, and two ‘SC’. Each of the nine guilty verdicts arose out of what might conveniently be called the ‘tent incident’. The tent incident was said to have occurred in 1979, when both RS and SC were aged eight years. The jury acquitted the appellant of a further 11 counts of indecent assault.
On 21 July 2010, after orders for cumulation were made as between individual sentences on each count, the appellant was sentenced to a total effective sentence of imprisonment of 5 years, and a non-parole period of 2 years and 8 months was fixed.
Originally there were two grounds of appeal against conviction. They are:
1.The verdicts on Charges 1-7, 19-20 are unreasonable or cannot be supported having regard to the evidence.
2.The applicant…
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.
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AGLC
Greensill v The Queen [2012] VSCA 306
Case
[2012] VSCA 306
Decision Date
CaseChat Overview and Summary
Greensill has appealed against his conviction and sentence for nine counts of indecent assault against two children under the age of ten. The children were former students of Greensill, who was a teacher at the time of the offences, which occurred over thirty years ago. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria.
The court was required to determine whether the evidence was sufficient for the jury to be satisfied beyond reasonable doubt that the offences occurred. Additionally, the court examined whether the trial judge erred in failing to give a forensic disadvantage direction. The court considered the provisions of Section 61 of the Crimes Act 1958 and Section 165B of the Evidence Act 2008. The court also considered whether any fresh evidence presented after the trial demonstrated a substantial miscarriage of justice and whether the verdicts were unsafe and unsatisfactory.
The court found that the trial judge did not err in failing to give a forensic disadvantage direction as no such request was made. The court discussed the obligation of the trial judge to give essential directions to avoid a miscarriage of justice. The court held that the verdicts were unsafe and unsatisfactory due to the lack of such direction and the inability of the jury to give proper consideration to the evidence presented. The court concluded that the fresh evidence presented after the trial demonstrated a substantial miscarriage of justice. The appeal was allowed, and the convictions and sentence were quashed. Verdicts of acquittal were entered in their place.