Jeffrey Arbogast (a pseudonym)[1] v The Queen - [2022] VSCA 143

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…

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: [2022] VSCA 143
Decision Date: 25 July 2022

CaseChat Overview and Summary

The appeal before the court was brought by Jeffrey Arbogast, who had been convicted of indecent acts with a child under the age of 16 and incest. The respondent, The Queen, sought to uphold the conviction. The case was heard in the High Court of Australia. The central issue for the court to determine was whether the verdicts were unreasonable or unsupported by the evidence. The appellant argued that there were inherent improbabilities in the account given by the complainant, which should have led the jury to entertain a reasonable doubt about the appellant's guilt.

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.

Orders