| 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…
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- AGLC
- John Charles (a pseudonym) v The Queen [2022] VSCA 166
- Case
- [2022] VSCA 166
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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