King v The Queen - [2012] VSCA 206

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0155

ANDREW KING
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BONGIORNO JA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 April 2012
DATE OF JUDGMENT:	31 August 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 206
JUDGMENT APPEALED FROM:	DPP (Vic) v King (Unreported, County Court of Victoria, Judge Mullaly, 21 June 2011 (date of verdict), 22 June 2011 (date of sentence))

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CRIMINAL LAW – Appeal – Conviction – Sexual offences – Whether 16-year-old victim was under appellant’s ‘care, supervision or authority’ – Whether appellant was victim’s ‘employer’ – Informal ad hoc arrangement for modelling photography – Whether appellant assumed care or supervision of victim – Reliance on deeming provision unnecessary – Care element established – Inconsistent verdicts – Whether verdict of guilty on indecent act charge inconsistent with acquittal on sexual penetration charge – Appeal dismissed – Crimes Act 1958 ss 48(4), 49(4) – R v Howes (2000) 2 VR 141 – Mackenzie v The Queen (1996) 190 CLR 348.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Grace QC	Marich Legal Pty Ltd
For the Respondent	Mr P Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
BONGIORNO JA
COGHLAN AJA:

Following a six-day trial in the County Court, on 21 June 2011, Andrew King (‘AK’)[1] was found guilty by a jury of one charge of committing an indecent act with a 16-year-old child (‘JL’) under his care, supervision or authority. He was acquitted of a charge of sexually penetrating the same child. On 22 June 2011, he was convicted by his Honour Judge Mullaly and fined $1,600. As a consequence of this conviction, AK became a ‘registrable offender’ for the purposes of the Sex Offenders Registration Act 2004 with a reporting period of eight years.
[1]The abbreviation is for ease of reference, not anonymity.

On 22 November 2011, Maxwell P granted AK leave to appeal against his conviction on the following grounds:

1. The learned trial judge erred in law in his directions to the jury as to the meaning of ‘employer’, for the purpose of the deemed relationship of care, supervision or authority provided by s 49(4) of the Crimes Act 1958, thereby giving rise to a substantial miscarriage of justice.

2. The jury’s guilty verdict on count 1 on the indictment is inconsistent with its not guilty verdict on count 2, in that it was not open to the jury in all of the circumstances of the case to have a doubt in relation to guilt on count 2, but not the same doubt on count 1, thereby giving rise to a verdict on count 1 which is unsafe or unsatisfactory.

AK was a tennis coach and part-owner of an indoor tennis centre in a provincial city. In 2008, when JL was 14, she started playing tennis at AK’s tennis centre. He was one of her coaches. AK was also the director of a fashion company. JL…

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 King v The Queen

Details

AGLC: King v The Queen [2012] VSCA 206
Case: [2012] VSCA 206
Decision Date: 31 August 2012

CaseChat Overview and Summary

In the case of King v The Queen, the appellant, King, was convicted by a jury in the County Court of Victoria of engaging in an indecent act with a 16-year-old girl and for sexually penetrating a person under the age of 16 years. The conviction arose from an incident where the appellant, a professional photographer, took the victim to a studio for modelling photography. The central issue in the appeal was whether the appellant had the care, supervision or authority over the victim, or was her employer, at the time of the offences. The Court of Appeal was required to determine the legal framework that applied to the circumstances and if the conviction was supported by the evidence.

The Court of Appeal considered whether the appellant was in a position of care, supervision or authority over the victim, or if he was her employer, at the time of the offences. The court found that the relationship between the appellant and the victim was not akin to a formal employment relationship or a carer-care recipient relationship. However, the court held that the appellant assumed care or supervision of the victim due to her age and inexperience, and the informal ad hoc arrangement for modelling photography. The court found that the deeming provision in the Crimes Act 1958 was unnecessary to establish the care element. The court also held that the verdict of guilty on the indecent act charge was not inconsistent with the acquittal on the sexual penetration charge. Accordingly, the appeal was dismissed.

The Court of Appeal dismissed the appeal and affirmed the conviction. The court held that the relationship between the appellant and the victim was not akin to a formal employment relationship or a carer-care recipient relationship. However, the court found that the appellant assumed care or supervision of the victim due to her age and inexperience, and the informal ad hoc arrangement for modelling photography. The court held that the deeming provision in the Crimes Act 1958 was unnecessary to establish the care element. The court also held that the verdict of guilty on the indecent act charge was not inconsistent with the acquittal on the sexual penetration charge. The appeal was dismissed, and the conviction was affirmed.

Orders