JUDGES:	MAXWELL P, PRIEST and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2020
DATE OF JUDGMENT:	3 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 310
JUDGMENT APPEALED FROM:	DPP v [Harmer] (Unreported, County Court of Victoria, Judge Murphy, 4 March 2019) (Conviction)

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CRIMINAL LAW — Appeal — Conviction — Incest — Indecent act with a child under 16 — Whether verdicts unreasonable or unable to be supported having regard to evidence — Inconsistent verdicts — Whether acquittal on one charge inconsistent with guilty verdicts on remaining charges — Whether majority verdicts inconsistent with unanimous verdicts — Verdicts not inconsistent — Verdicts not unreasonable — Leave to appeal granted — Appeal dismissed — Pell v The Queen (2020) 376 ALR 478; MacKenzie v The Queen (1996) 190 CLR 348; Anderson v The Queen [2010] VSCA 108 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Boston and Ms F Fox	Furstenberg Law
For the Respondent	Ms D Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of Priest JA. I agree with his Honour, for the reasons he gives, that both grounds of appeal as originally formulated — unreasonableness and inconsistent verdicts — must be rejected.

Unlike his Honour, however, I would also reject the specific challenge to the conviction on charge 2. I agree with Niall JA, for the reasons he gives, that the guilty verdict on that charge was reasonably open on the complainant’s evidence.

PRIEST JA:

Introduction

Following a trial in the County Court, on 5 March 2019 the jury found the applicant guilty of 12 charges: seven charges of incest[2] (charges 2, 3, 7, 8, 9, 11 and 13) and five charges of committing an indecent act with a child under 16[3] (charges 1, 4, 5, 6 and 12). Six of those guilty verdicts were unanimous (charges 2, 4, 5, 6, 10 and 13), and six were by a majority (charges 1, 3, 7, 8, 9 and 11). By unanimous verdict, the jury also found the applicant not guilty of one charge of incest (charge 12).[4]
[2]Crimes Act 1958, s 44(1).
[3]Crimes Act 1958, s 47(1).
[4]A jury had been unable to reach verdicts in a previous trial in February 2019.

On 9 May 2019, the trial judge sentenced the applicant to a total effective sentence of 12 years and 10 months’ imprisonment, with a non-parole period of eight years and six months.

The applicant now seeks leave to appeal against his conviction on two grounds, formulated as follows:

1. The verdicts are unreasonable or unable to be supported having regard to the evidence.

2. The verdicts are unreasonable, in that no reasonable…

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 Harmer (a pseudonym) v The Queen

Details

AGLC: Harmer (a pseudonym) v The Queen [2020] VSCA 310
Case: [2020] VSCA 310
Decision Date: 3 December 2020

CaseChat Overview and Summary

The appellant, Harmer, was convicted of multiple charges, including incest and indecent acts with a child under 16, and appealed against the conviction, contending that the verdicts were unreasonable or unable to be supported by the evidence. The appeal was heard in the High Court of Australia. The legal issues before the court involved whether the verdicts were inconsistent, whether an acquittal on one charge was inconsistent with guilty verdicts on the remaining charges, and whether majority verdicts could be inconsistent with unanimous verdicts.

The court considered whether the verdicts were inconsistent and whether they were unreasonable. The court held that the verdicts were not inconsistent and were not unreasonable, given the evidence presented. The court noted that acquittals on some charges did not necessarily mean that the guilty verdicts on other charges were unreasonable, as each charge was considered separately. The court also held that majority verdicts did not necessarily mean that the verdicts were inconsistent with unanimous verdicts, as long as the verdicts were supported by the evidence. The court referred to previous cases, such as Pell v The Queen, MacKenzie v The Queen, and Anderson v The Queen, to support its reasoning.

The court granted leave to appeal but dismissed the appeal, holding that the verdicts were not unreasonable or unable to be supported by the evidence. The court held that the jury was entitled to accept some evidence and reject other evidence, and that the verdicts were open to the jury on the evidence presented. The court held that the appellant had not shown that the verdicts were unsafe and unsatisfactory.

No further orders were made by the court.

Orders