Jaxon Dun (a pseudonym)[1] v The Queen - [2019] VSCA 43

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0097

JAXON DUN (a pseudonym)[1]	Appellant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

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JUDGES:	T FORREST and EMERTON JJA and TAYLOR AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 February 2019
DATE OF JUDGMENT:	6 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 43
JUDGMENT APPEALED FROM:	[2018] VCC 337 (Judge Montgomery)

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CRIMINAL LAW – Appeal – Conviction – Incest – Indecent act with a child under 16 – Irrelevant and highly prejudicial evidence – Whether failure to give alibi direction – Whether failure to give separate consideration direction – Whether failure to give anti-tendency direction – Impermissible use of evidence – Substantial miscarriage of justice – Appeal allowed – Retrial ordered – Jury Directions Act 2015 ss 12, 15, 17.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	David Luscombe and Associates
For the Respondent	Mr J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

T FORREST JA
EMERTON JA
TAYLOR AJA:

Background

The prosecution case was that on 7 April 2013, SS, then aged 14, was alone in her bedroom at her father’s home in Lara. The applicant, her grandfather, then aged 72, came into her bedroom. She showed him pictures of horses for sale on her computer. At this stage, she was sitting at her table. The applicant kissed her, moved her towards the bed and inserted a finger into her vagina while his other hand rubbed her hip. He asked her if she liked it and she replied, ‘No.’ The applicant left the room. (Charge 1)

Shortly after, SS made complaints about the incident to DG, IL and KD.

At trial, the applicant gave evidence and denied this event. He asserted that SS was upset with him for refusing to buy her a horse.

On around 24 August 2014, the applicant visited his son’s home in Lara. It was arranged that JS, the applicant’s granddaughter (and SS’ younger sister), was to sleep with her grandmother and the applicant was to sleep in JS’ bedroom. JS came into that bedroom to say goodnight to her grandfather who was in bed. As she turned away from the applicant, he held her by her pyjama pants, pulled her back towards him, placed his hand down her pyjama pants and inserted his finger into her vagina. (Charge 2) The applicant then kissed her breasts. (Charge 3)

JS left the room and went back to bed. JS was then aged 13. The applicant also denied this offending.

Between Friday 28 August 2015 and Sunday 30 August 2015, JS went to the applicant’s house in Cowes. She slept in. She stated that at around 12pm, she was sitting on the lounge room floor eating toast. The applicant sat behind her on the couch, took hold…

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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Details

Case: [2019] VSCA 43
Decision Date: 6 March 2019

CaseChat Overview and Summary

In the matter of Jaxon Dun, appealing against his conviction, the respondent was the Crown. The dispute centred on the appellant's conviction for committing an indecent act with a child under 16 years of age, which constituted an act of incest. The case was heard in the Court of Appeal, which had jurisdiction to review the appellant's conviction and sentence under the Criminal Appeal Act 1973. The primary legal issues were whether there were errors in the directions given to the jury and whether the evidence presented was prejudicial and irrelevant, potentially causing a substantial miscarriage of justice. The court was required to determine if the trial judge failed to give appropriate directions concerning the use of alibi evidence, the consideration of evidence separately, and the potential for prejudice due to the appellant's tendency to commit such acts.

The court meticulously reviewed the trial judge's directions to the jury and the evidence presented. It found that the trial judge did not provide an alibi direction as required by the Jury Directions Act 2015, section 12, which mandates such a direction when the defence presents an alibi. Additionally, the court found that the trial judge failed to give a direction concerning the separate consideration of evidence, as required by section 15 of the same act. The court also found that the judge did not adequately address the potential for prejudice arising from evidence of the appellant's previous tendencies to commit similar acts, as required by section 17. The court concluded that the failure to give these directions amounted to errors that likely affected the jury's consideration of the evidence and the appellant's conviction. The court further found that some of the evidence presented was irrelevant and highly prejudicial, which compounded the risk of a miscarriage of justice.

Consequently, the Court of Appeal allowed the appeal, finding that the errors in the jury directions and the impermissible use of prejudicial evidence created a substantial risk of a miscarriage of justice. The court ordered a retrial, emphasising the importance of proper jury directions and the exclusion of irrelevant and prejudicial evidence to ensure a fair trial. The court's decision underscored the necessity of adhering to statutory requirements for jury directions and the judicious use of evidence to protect the rights of the accused.

Orders