Griffin v The Queen - [2011] VSCA 304

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0041
JASON GRIFFIN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, MANDIE JJA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 September 2011
DATE OF JUDGMENT:	14 October 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 304
JUDGMENT APPEALED FROM:	R v Griffin (Unreported, County Court of Victoria, Judge Rizkalla, 16 February 2010)

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CRIMINAL LAW – Application for leave to appeal conviction – Charges of sexual penetration of child under 16 – Directions as to recent complaint – Failure to give separate summary of evidence – Application dismissed.

Application for leave to appeal sentence – Two counts – Victim 14, offender 34 – Sentenced to total effective sentence of 5 years 6 months with non-parole period of 3 years 6 months – Not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J E McLoughlin	Victoria Legal Aid
For the Respondent	Mr O P Holdenson QC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

I agree with Whelan AJA.

MANDIE AJA:

I also agree with Whelan AJA.

WHELAN AJA:

On 28 October 2009 Jason Griffin was convicted after a trial in the County Court of two counts of taking part in an act of sexual penetration with a child under 16. Each offence was alleged to have been committed on 10 December 2007. He had pleaded guilty to offences of burglary and theft committed on 4 December 2007.

A plea hearing was held on 14 December 2009. Mr Griffin was sentenced on 16 February 2010. He was sentenced to 4 years’ imprisonment on each of the counts of sexual penetration, and six month’s imprisonment on each of the burglary and theft counts. The only order for cumulation was an order that 18 months of the sentence on the second count of sexual penetration be cumulated on the sentence imposed on the first. Accordingly, the total effective sentence in relation to all four offences was 5 years 6 months’ imprisonment. Her Honour fixed a non-parole period of 3 years 6 months.

Mr Griffin now applies for leave to appeal his conviction and sentence. His grounds all relate to the sexual penetration offences.

In relation to the sexual penetration offences, the prosecution case was that the female complainant and a male school friend left their nearby school and visited the house of the applicant on 10 December 2007. They were in school uniform. The complainant was aged 14 years. The applicant was aged 34 years.

The prosecution case was that whilst at the applicant’s house the complainant consumed alcohol and a white tablet. After the complainant’s male school friend

had left, the prosecution case was that the complainant performed oral sex on the applicant in the kitchen and that the applicant penetrated the complainant’s vagina with his penis in the lounge room shortly afterwards.

The applicant did not give evidence. In his record of interview he denied that any sexual activity had occurred.

In relation to the application for…

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 Griffin v The Queen

Details

AGLC: Griffin v The Queen [2011] VSCA 304
Case: [2011] VSCA 304
Decision Date: 14 October 2011

CaseChat Overview and Summary

In the case of Griffin v The Queen, the applicant, Griffin, sought leave to appeal against both his conviction and the severity of his sentence for charges involving sexual penetration of a child under 16. The matter was heard in the High Court of Australia, which was required to determine whether the applicant had grounds to appeal based on alleged procedural errors and the severity of the sentence.

The central legal issues revolved around whether the trial judge erred in his directions to the jury concerning a recent complaint made by the victim, and if the failure to provide a separate summary of the evidence amounted to a miscarriage of justice. Additionally, the court had to consider whether the sentence imposed was manifestly excessive. Griffin argued that the trial judge’s directions regarding the recent complaint were insufficient and prejudicial, potentially influencing the jury’s verdict unfavourably. Furthermore, Griffin contended that the absence of a separate summary of the evidence deprived him of a fair trial.

The High Court held that the trial judge's directions, while not ideal, did not result in a miscarriage of justice. The court found that the jury was adequately guided to consider the recent complaint in a balanced manner. Regarding the lack of a separate summary of evidence, the court determined that while this was an error, it did not affect the outcome of the trial. The Court also found that the sentence, which was a total effective period of 5 years and 6 months with a non-parole period of 3 years and 6 months, was not manifestly excessive given the nature and circumstances of the offences. Consequently, the application for leave to appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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