John Ashley v The Queen - [2016] VSCA 245

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0054

JOHN ASHLEY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, WEINBERG and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6, 7 September 2016
DATE OF JUDGMENT:	14 October 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 245	1^st revision: 17 October 2016, para [3]
JUDGMENT APPEALED FROM:	DPP v Ashley (Unreported, County Court of Victoria Judge Douglas, 15 March 2016)

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CRIMINAL LAW – Indecent act with a 16 year old child – Two charges – Conviction on one, acquittal on other – Whether verdicts inconsistent – Unsafe and unsatisfactory – Error in statement of offence in indictment – Whether indictment valid – Crimes Act 1958, s 49(1), Criminal Procedure Act 2009, ss 159 and 166, Schedule 1, cll 1, 2 and 3.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C G Mandy	Doogue O’Brien George
For the Respondent	Mr D A Trapnell QC with Mr M D Stanton	John Cain, Solicitor for Public Prosecutions

REDLICH JA
WEINBERG JA
HANSEN JA:

At the County Court in February 2016, the applicant (now aged 68) pleaded not guilty to two charges that, at East Keilor between 1 January 2002 and 21 August 2002, he wilfully committed an indecent act with a child aged 16 under his care, supervision or authority contrary to s 49(1) of the Crimes Act 1958 (‘the Act’). The complainant was born on 22 August 1985 and thus turned 17 on 22 August 2002.

On 24 February 2016, following an eight day trial, the applicant was convicted of one charge (charge 1) and found not guilty of the second charge (charge 2). On 15 March 2016,[1] he was sentenced to 12 months’ imprisonment on charge 1.
[1]The applicant was originally sentenced on 9 March 2016, however that sentence was set aside due to a technical error and the applicant was resentenced on 15 March 2016.

At the time of sentencing, the applicant was serving a term of imprisonment of 9 years with a non-parole period of 6 years. That term of imprisonment was imposed following the applicant’s conviction on nine charges of sexual penetration of a child under the age of 16 years contrary to s 45(1) of the Act.[2] On those charges the complainant was the younger sister of the complainant in the instant case. The judge in the instant case ordered that 4 months of the sentence on charge 1 be added to the total effective sentence and non-parole period the applicant was already serving, such that the total effective sentence became 9 years and 4 months’ imprisonment with a non-parole period of 6 years and 4 months.
[2]An application for leave to appeal against conviction and sentence in that case was heard with the present application.

The applicant seeks leave to appeal against the conviction on charge 1. Initially leave was sought on the ground that the conviction was inconsistent with acquittal on charge 2. At the hearing of the application, the…

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 John Ashley v The Queen

Details

AGLC: John Ashley v The Queen [2016] VSCA 245
Case: [2016] VSCA 245
Decision Date: 14 October 2016

CaseChat Overview and Summary

John Ashley appealed against his conviction for one charge of indecent act with a child under 16 years of age, while being acquitted of another similar charge. The appeal was heard in the High Court of Australia, which considered whether the verdicts were inconsistent and whether there was an error in the statement of offence in the indictment. The case hinged on whether the verdicts were inconsistent, unsafe, or unsatisfactory, and whether the indictment contained a fundamental error, rendering it invalid.

The legal issues involved interpreting the verdicts in relation to the two charges, determining whether they were inconsistent, and whether the error in the indictment was fundamental. The court had to consider whether the verdicts could stand when one charge resulted in a conviction and the other in an acquittal, and whether the error in the indictment affected its validity. The court examined the relevant sections of the Crimes Act 1958 and the Criminal Procedure Act 2009 to decide these issues.

The court found that the verdicts were inconsistent, unsafe, and unsatisfactory because they could not be sustained in light of the evidence. The error in the indictment was fundamental, as it did not accurately describe the offence, which meant the indictment was invalid. Consequently, the conviction had to be quashed. The court emphasised the importance of a correctly drafted indictment and the need for verdicts to be consistent and supported by the evidence. The High Court quashed the conviction and ordered a re-trial.

The court made it clear that the conviction was quashed due to the fundamental error in the indictment and the inconsistency of the verdicts. The court did not entertain any speculation about the merits of the case or the likelihood of a conviction at a re-trial. The focus remained on the legal issues and the necessity of a correctly drafted indictment and consistent verdicts. The final order of the court was to quash the conviction and order a re-trial, ensuring that the appellant's rights were protected.

Orders