| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0119 |
| JEFFREY ARBOGAST (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant, complainant and witnesses.
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| JUDGES: | EMERTON P, McLEISH and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 May 2022 |
| DATE OF JUDGMENT: | 25 July 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 143 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1132 (Judge Hassan) |
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CRIMINAL LAW – Appeal – Conviction – Indecent act with child under 16 and incest – Whether verdicts unreasonable or cannot be supported by evidence – Inherent improbabilities in complainant’s account – Jury should have had reasonable doubt about guilt – Appeal allowed.
Criminal Procedure Act 2009 s 276(1)(a).
M v The Queen (1994) 181 CLR 487, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 applied.
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| Counsel | |||
| Applicant: | Mr D Dann QC with Mr P Smallwood and Mr C Grant | ||
| Respondent: | Ms E Ruddle QC | ||
Solicitors | |||
| Applicant: | Paul Vale Criminal Law | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
EMERTON P
T FORREST JA:
The applicant was charged on indictment with seven charges of indecent act with a child under 16 (charges 1 to 4, 6, 8 and 9) and two charges of incest (charges 5 and 7). His criminal trial took place in the County Court before a judge and jury and on 7 May 2021 he was found guilty by majority of charges 1 to 8 and not guilty by majority of charge 9.
The prosecution alleged that each offence was committed between 1 November 2014 and 31 January 2016. The applicant’s granddaughter, Amelia Arbogast,[2] was the complainant in relation to each charge. The applicant, in his police interview, denied each allegation. As is now the practice, the complainant’s evidence-in-chief was recorded in a Video Audio Recorded Evidence (‘VARE’) procedure and she was cross-examined in a special hearing (‘SH’). Recordings of both were played to the jury during the trial.
[2]A pseudonym.
The details of the convictions and sentences imposed are set out in the following table:
| Charge on Indictment | Offence | Sentence | Cumulation | |
| 1 | Indecent act with a child under 16 (contrary to s 47(1) of the Crimes Act 1958)[3] | 4 years | 1 year 6 months | |
| 2 | Indecent act with a child under 16 (contrary to s 47(1) of the Crimes Act) | 2 years 6 months | 9 months | |
| 3 | Indecent act with a child under 16 (contrary to s 47(1) of the Crimes Act) | 2 years 6 months | - | |
| 4 | Indecent act with a child under 16 (contrary to s 47(1) of the Crimes Act) | 4 years | 1 year 6 months | |
| 5 | Incest (contrary to s 44(1) of the Crimes Act)[4] | 6 years | 1 year | |
| 6 | Indecent act with a child under 16 (contrary to s 47(1) of the Crimes Act) | 4 years | - | |
| 7 | Incest (contrary to… | |||
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- Case
- [2022] VSCA 143
- Decision Date
CaseChat Overview and Summary
The court considered the principles established in M v The Queen and Pell v The Queen, which require that a conviction be safe and satisfactory. The appellant's counsel submitted that the jury should have been left with a reasonable doubt about the guilt of the appellant due to the inconsistencies and unreliability of the complainant's evidence. The court agreed, finding that the evidence was such that a reasonable doubt should have been entertained. The court found the appeal to be well-founded, and the convictions were quashed. The matter was remitted to the trial court for a new trial.
The final orders of the court were that the appeal be allowed, the convictions be quashed, and the matter be remitted to the trial court for a new trial. The court did not make any orders as to costs.
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