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John Charles (a pseudonym) v The Queen

John Charles (a pseudonym) v The Queen

Case [2022] VSCA 166 18 August 2022

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0130

JOHN CHARLES (a pseudonym)	Applicant
v
THE QUEEN	Respondent

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JUDGES:	EMERTON P, KYROU and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2022
DATE OF JUDGMENT:	18 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 166
JUDGMENT APPEALED FROM:	[2021] VCC 1282 (Sentence) (Judge Gucciardo)

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CRIMINAL LAW – Appeal – Conviction – Indecent act with child under 16 – Whether substantial miscarriage of justice occurred by admission of irrelevant evidence – Whether unfairly prejudicial – Whether cross-examination of applicant and prosecutor’s closing address reversed onus of proof – Whether verdicts inconsistent or unreasonable – Whether victim impact statement contained fresh evidence resulting in substantial miscarriage of justice – Whether prosecutor’s submissions on complainant’s distress at time of complaint resulted in substantial miscarriage of justice – Application for leave to appeal granted – Appeal allowed – Convictions set aside and new trial ordered.

Palmer v The Queen (1998) 193 CLR 1 applied; Paull v The Queen [2021] VSCA 339 discussed.

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Counsel
Applicant:		Mr T Kassimatis QC with Ms A Roodenburg
Respondent:		Ms D Piekusis QC
Solicitors
Applicant:	Tony Hargreaves & Partners
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
KYROU JA
T FORREST JA:

The applicant was a senior member and instructor at a karate club in central Victoria. Between 2002 and 2004, the complainant was a junior member. On 14 April 2021, the applicant was convicted by a jury of two charges of indecent act with a child under 16[1] and two charges of sexual penetration of a child under 16.[2] The jury acquitted him of charges 6 and 7 (sexual penetration of a child under 16 years) and, by direction of the judge, found him not guilty on charges 3 and 8 (indecent act with a child under 16). On 2 September 2021, he was sentenced by a judge of the County Court as follows:
[1]Crimes Act 1958, s 47(1) (as amended by the Crimes (Sexual Offences) Act 1991).
[2]Crimes Act, s 45(1) (as amended by the Crimes Amendment Act 2000).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Indecent act with a child under 16	10 years	5 years	1 year and 5 months
2	Indecent act with a child under 16	10 years	3 years	8 months
4	Sexual penetration of a child under 16	10 years	5 years	Base
5	Sexual penetration of a child under 16	10 years	5 years	1 year and 5 months
Total Effective Sentence:		8 years 6 months’ imprisonment
Non-Parole Period:		5 years 6 months
Pre-sentence Detention Declared:		141 days
Other Relevant Orders: 1. Lifetime reporting period pursuant to s 34 of the Sex Offenders Registration Act 2004. 2. Sentenced as a serious sexual offender on charges 4 and 5.

The applicant seeks leave to appeal his conviction on charges 1, 2, 4 and 5, on the following grounds of appeal:[3]
[3]Proposed ground 3 was abandoned by counsel…

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 Charles (a pseudonym) v The Queen

Details

AGLC: John Charles (a pseudonym) v The Queen [2022] VSCA 166
Case: [2022] VSCA 166
Decision Date: 18 August 2022

CaseChat Overview and Summary

The appellant, John Charles, appealed against his conviction for indecent acts with a child under the age of 16. The case was heard by the Court of Appeal. The appeal centred on whether there was a substantial miscarriage of justice due to the admission of irrelevant evidence, the unfairness of this evidence, the impact of the cross-examination of the applicant and the prosecutor’s closing address on the onus of proof, and the consistency and reasonableness of the verdicts. Additionally, the appeal questioned whether the victim impact statement introduced new evidence that caused a substantial miscarriage of justice and if the prosecutor’s remarks about the complainant’s distress at the time of the complaint were prejudicial.

The court examined whether the evidence was relevant and if its admission was unfairly prejudicial, potentially affecting the outcome of the trial. It also considered whether the cross-examination and the prosecutor’s closing address had the effect of reversing the onus of proof, impacting the fairness of the trial. The consistency and reasonableness of the verdicts were scrutinised to determine if they were reliable and justifiable. Furthermore, the court assessed whether the victim impact statement introduced new evidence that had not been previously considered and if the prosecutor’s comments on the complainant’s distress at the time of the complaint had an unfair prejudicial impact on the jury.

The Court of Appeal found that the admission of certain evidence was indeed irrelevant and unfairly prejudicial, constituting a substantial miscarriage of justice. The cross-examination and the prosecutor’s closing address were deemed to have shifted the onus of proof, thereby undermining the fairness of the trial. The verdicts were found to be inconsistent and unreasonable. Additionally, the victim impact statement was considered to have introduced fresh evidence, and the prosecutor’s comments on the complainant’s distress were found to be prejudicial. Consequently, the appeal was granted, the convictions were set aside, and a new trial was ordered.

The final orders of the court were that the convictions be set aside and a new trial be ordered, reflecting the court's determination that the substantial miscarriage of justice warranted a re-evaluation of the case in a fresh trial.

Orders