Lawrence Owens (a pseudonym)[1] v The Queen - [2015] VSCA 352

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0100

LAWRENCE OWENS (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	MAXWELL P, PRIEST JA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 October 2015
DATE OF JUDGMENT:	18 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 352
JUDGMENT APPEALED FROM:	DPP v [Owens] (Unreported, County Court of Victoria, Judge Lacava, 1 May 2015)

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CRIMINAL LAW – Appeal – Conviction – Six charges of child sexual offences against one complainant – Inconsistencies in complainant’s evidence – Inconsistencies between complainant’s evidence and the evidence of other witnesses – Whether convictions unsafe and unsatisfactory – Statements made by complainant to psychologist – Whether capable of being used as evidence of consistency – Whether jury properly directed on use of the psychologist’s evidence – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Phillips	Victoria Legal Aid
For the Respondent	Mr D Trapnell QC	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P:

I agree with Beale AJA.

PRIEST JA:

I also agree with Beale AJA.

BEALE AJA:

Overview

On 28 January 2015, the applicant was found guilty by a jury of six sexual offences committed between 1991 and 1992 against his former partner’s son, who was 11 or 12 years of age at the time. The trial judge directed an acquittal on charge 6, which was a charge of sexual penetration of a child under the age of 16, as there was no evidence adduced from the complainant in relation to that charge. Following a plea on 1 April 2015, the applicant was sentenced on 1 May 2015 as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Indecent assault [Crimes Act 1958 s 44(1)]	5 years	2 years	Nil
2	Taking part in an act of sexual penetration with a person of or above the age of 10 but under 16 [Crimes Act 1958 s 48(1) and (3)]	15 years	4 years	2 years
3	Indecent act with a child under 16 [Crimes Act 1958 s 47(1)]	10 years	2 years	Nil
4	Taking part in an act of sexual penetration with a child under 16 [Crimes Act 1958 s 45(1)]	15 years	4 years	6 months
5	Attempted sexual penetration with a child under 16 [Crimes Act 1958 s 45(1) and 321M]	10 years	3 years	Nil
7	Taking part in an act of sexual penetration with a child under 16 [Crimes Act 1958 s 45(1)]	15 years	5 years	Base
Total Effective Sentence:		7 years and 6 months imprisonment
Non-Parole Period:		5 years
Pre-sentence Detention Declared:		93 days
Other orders: Forensic order, sentenced as a serious sexual offender pursuant to s 6F Sentencing Act 1991, placed on the Sex Offenders…

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: [2015] VSCA 352
Decision Date: 18 December 2015

CaseChat Overview and Summary

The appellant, Lawrence Owens, appealed against his conviction on six charges related to child sexual offences against a single complainant. The case was heard in the High Court of Australia, which considered whether the convictions were unsafe and unsatisfactory due to inconsistencies in the complainant's evidence and the testimonies of other witnesses. The court also examined whether statements made by the complainant to a psychologist could be used as evidence of consistency and whether the jury was properly directed on the use of the psychologist's evidence.

The legal issues before the court were the reliability and consistency of the complainant's evidence, the admissibility of the psychologist's statements, and the adequacy of the jury's direction regarding the use of such evidence. The court needed to determine if these issues were significant enough to render the convictions unsafe and unsatisfactory. Additionally, the court considered whether the jury was correctly instructed on how to assess the psychologist's evidence, which played a crucial role in the case.

The High Court found that the inconsistencies in the evidence did not undermine the safety and satisfaction of the convictions. The court held that the psychologist's statements were appropriately admitted and that the jury was adequately directed on their use. The court emphasised that inconsistencies in evidence do not automatically render a conviction unsafe and unsatisfactory, especially when the jury has been properly instructed on assessing such inconsistencies. Consequently, the court dismissed the appeal and refused leave to appeal.

No further orders were made by the court as the appeal was dismissed outright. The convictions on all six charges against the appellant remained in place, affirming the trial court's decision.

Orders