Levett v The King - [2024] VSCA 243

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0186

LEONARD LEVETT	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, KENNEDY and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2024
DATE OF JUDGMENT:	18 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 243
JUDGMENT APPEALED FROM:	[2023] VCC 1418 (Judge Hassan)

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CRIMINAL LAW – Conviction – Appeal – Rape – Trial by judge alone – Whether conviction unreasonable on basis of insufficient evidence of penetration – Whether judge erred in permitting leading question to be asked when evidence was in dispute – Whether not open to judge to conclude that text message sent by complainant constituted an explicit complaint of rape – Proposed grounds of appeal without merit – Application for leave to appeal refused.

Dansie v The Queen (2022) 274 CLR 651, applied.

Criminal Procedure Act 2009, ss 276(1)(a) and 420F(2).

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Counsel
Applicant:		Mr R Nathwani SC with Ms F Fox
Respondent:		Ms BJ Goding
Solicitors
Applicant:	SLKQ Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KENNEDY JA
KAYE JA:

Between 1984 and 1986, Megan Gilligan,[1] Ashley Tindale[2] and Jill Coombes[3] were teenage girls, who resided at the Tally Ho Children’s Home in Burwood as Wards of the State. During this period, the applicant was employed there, first as a night watchman, and subsequently as an assistant cottage parent.
[1]A pseudonym.
[2]A pseudonym.
[3]A pseudonym.
On 8 November 2022, the applicant pleaded guilty in the County Court to one charge of indecently assaulting Ms Gilligan,[4] and two charges of sexually penetrating her when she was between the ages of 10 and 16 and under his care, supervision or authority.[5] The three charges were rolled-up charges: the first encompassing five separate occasions; the second encompassing six penile-oral penetrations; and the third encompassing three penile-vaginal penetrations.
[4]Contrary to s 44 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
[5]Contrary to s 48 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
On 16 December 2022, following a judge-alone trial in the County Court, the applicant was found guilty of three charges of raping Ms Tindale[6] (charges 5, 6 and 7); and two charges of sexually penetrating Ms Coombes when she was aged between 10 and 16, and under his care, supervision or authority[7] (charges 8 and 9).
[6]Contrary to s 45 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
[7]Contrary to s 48 of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
On 18 August 2023, the trial judge sentenced the applicant in respect of his offending against Ms Gilligan, Ms Tindale and Ms Coombes to a total effective sentence of 13 years’ imprisonment.[8] The judge directed that eight years of this sentence be served cumulatively upon a sentence the applicant was then serving for other offending, making a total effective sentence of 21…

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 Levett v The King

Details

AGLC: Levett v The King [2024] VSCA 243
Case: [2024] VSCA 243
Decision Date: 18 October 2024

CaseChat Overview and Summary

The case of Levett v The King involved an appeal against a conviction for rape. The dispute centred on whether the conviction was unreasonable due to insufficient evidence of penetration, whether the judge erred in permitting a leading question when the evidence was in dispute, and whether the judge was correct in concluding that a text message sent by the complainant constituted an explicit complaint of rape. The matter was heard and determined in the High Court of Australia.

The legal issues before the court were whether the trial judge erred in permitting a leading question to be asked when the evidence was in dispute, whether the judge erred in concluding that the text message sent by the complainant constituted an explicit complaint of rape, and whether the conviction was unreasonable on the basis of insufficient evidence of penetration. The court also considered the application for leave to appeal under the Criminal Procedure Act 2009.

The High Court held that the proposed grounds of appeal were without merit. The court found that the trial judge did not err in permitting the leading question, as it did not unfairly prejudice the appellant. The court also found that the trial judge was not wrong in concluding that the text message sent by the complainant constituted an explicit complaint of rape. The court held that the evidence, when viewed as a whole, supported the conviction and it was not unreasonable. Consequently, the application for leave to appeal was refused. The court applied Dansie v The Queen (2022) 274 CLR 651 in reaching its decision.

Orders