HRJ v The Queen - [2011] VSCA 217

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0321
HRJ	Applicant
v
THE QUEEN	Respondent

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JUDGES:	HANSEN JA and WHELAN and ROSS AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 July 2011
DATE OF JUDGMENT:	3 August 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 217
JUDGMENT APPEALED FROM:	DPP v [HRJ] (Unreported, County Court of Victoria, Judge McInerney, 11 August 2010)

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CRIMINAL LAW – Conviction – Sexual penetration and indecent acts with child under 16 years – Two complainants – Five counts on presentment – Jury returned not guilty verdicts on counts 1 to 3 (victim Y) – Reaction in court room to verdicts – Judge directed jury to disregard reaction – Jury subsequently returned majority verdicts of guilty on counts 4 and 5 (victim X) – Whether reaction in court room created risk that jury not impartial on counts 4 and 5 – Defence counsel did not seek discharge of jury for forensic reasons – No need to discharge jury – Directions sufficient – No error in taking verdicts on counts 1 to 3 before giving Black direction – Evidence of X not inherently unreliable because of young age – Evidence of brother supported evidence of X but not Y – Different verdicts explicable – Leave refused.

CRIMINAL LAW – Sentence – Indecent acts with child under 16 years – Two counts – Total effective sentence of three years and two months’ imprisonment with non-parole period of 18 months not manifestly excessive – No error in refusal to suspend sentence – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R J Thyssen	Stuthridge Legal
For the Respondent	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

HANSEN JA:

The applicant was convicted by a County Court jury of two counts of committing an indecent act with a child under the age of 16 years. The maximum penalty for each offence was 10 years’ imprisonment under s 47(1) of the Crimes Act 1958 as it stood at the relevant time. The victim, who was the next door neighbour of the applicant, was a girl (‘X’) aged three or four years when the offences occurred between 1994 and 1996. The two offences were committed on the same occasion and consisted of the applicant rubbing X’s inner thigh (count 4) and licking her vagina (count 5). The applicant was acquitted of counts 1, 2 and 3 on the presentment, which alleged two counts of sexual penetration and one count of committing an indecent act with a child under the age of 16 years, in respect of X’s older sister (‘Y’) who was seven or eight years old in 1992 or 1993 when the offences were alleged to have occurred.

Following a plea in mitigation, the applicant was sentenced on 11 August 2010 to six months’ imprisonment on count 4 and three years’ imprisonment on count 5, with two months of the former sentence to be served cumulatively on the latter, producing a total effective…

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 HRJ v The Queen

Details

AGLC: H R J v The Queen [2011] VSCA 217
Case: [2011] VSCA 217
Decision Date: 3 August 2011

CaseChat Overview and Summary

In the matter of HRJ v The Queen, the High Court was presented with a case where the appellant, HRJ, was convicted on two counts of indecent acts with a child under 16 years of age, and the appellant sought to appeal both his conviction and the sentence imposed. The jury returned not guilty verdicts on three counts related to the first complainant, Y, and majority guilty verdicts on the remaining two counts concerning the second complainant, X. The appellant argued that the reaction in the courtroom to the not guilty verdicts on counts 1 to 3 may have influenced the jury’s impartiality when they later rendered the guilty verdicts on counts 4 and 5. Furthermore, HRJ contested the reliability of the evidence provided by the complainants, particularly given their young age, and questioned the appropriateness of the sentence imposed.

The legal issues before the court involved the potential for bias in the jury due to the courtroom reaction, the admissibility and reliability of the complainants’ evidence, and the proportionality and appropriateness of the sentence. The court examined whether the reaction in the courtroom created a risk of bias that could affect the impartiality of the jury on the subsequent counts. The court also considered the appellant's contention that the evidence provided by the complainants was inherently unreliable due to their age and whether the sentence imposed was manifestly excessive.

The court found that the reaction in the courtroom did not create a risk of bias sufficient to warrant discharging the jury. The directions provided by the trial judge were deemed sufficient to mitigate any potential bias. The court further held that there was no error in taking the verdicts on counts 1 to 3 before giving the Black direction, and that the evidence provided by the complainants was not inherently unreliable due to their age. The different verdicts for the two complainants were found to be explicable based on the evidence presented. Lastly, the court determined that the total effective sentence of three years and two months’ imprisonment with a non-parole period of 18 months was not manifestly excessive.

The application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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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