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Lewers (a pseudonym) v The Queen

Lewers (a pseudonym) v The Queen

Case [2019] VSCA 272 21 November 2019

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0254
S APCR 2019 0052

JASPER LEWERS (A PSEUDONYM) [1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identifying the alleged victim of 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:	PRIEST, NIALL and HARGRAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 November 2019
DATE OF JUDGMENT:	21 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 272
JUDGMENT APPEALED FROM:	DPP v Lewers (a Pseudonym) (County Court of Victoria, Judge Higham, 31 October 2018) (conviction); [2018] VCC 1773 (sentence)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of 23 charges, including threatening to inflict serious injury, common assault, incest, making threats to kill and indecent acts with a child under 16 – Victims are applicant’s biological twin daughters – ‘Overloaded’ indictment – Whether joinder of sexual and non-sexual offences on indictment occasioned error – Whether improper cross-examination of witness should have resulted in severing of indictment – Leave to appeal refused – Charges alleging non-sexual violence and sexual offending had common factual origin – Trial counsel’s forensic decision not to apply for severance did not result in substantial miscarriage of justice – Prosecution’s cross examination cumbersome but not unfair – R v Barrell and Wilson (1979) 69 Cr App R 250, De Jesus v The Queen (1986) 61 ALJR 1 considered.

CRIMINAL LAW – Appeal – Sentence – Applicant sentenced to total effective sentence 12 years and 3 months’ imprisonment with non-parole period of 8 years and 4 months – Whether manifestly excessive – Leave to appeal refused – Protracted period of offending attended by violence – Protection of community a primary sentencing factor.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Gillespie-Jones	Nicholas O’Donohue & Co
For the Respondent	Mr C B Boyce QC with Mr T Bourbon	John Cain, Solicitor for Public prosecutions

PRIEST JA
NIALL JA
HARGRAVE JA:

Overview

The applicant is the biological father of twin daughters, ‘RZ’ and ‘GZ’, who were born in an African country in 2003. Shortly after they were born, the applicant fled his African home because of the political situation, leaving his daughters and their mother behind. He arrived in Australia in 2006, and was joined by his daughters in 2009.

An indictment filed in the County Court charged the applicant with 28 separate offences against his daughters. The offences alleged were of both of a sexual and non-sexual nature, and spanned a period between 7 June 2010 and 17 October 2015, when the applicant was aged between 35 and 40 years of age.[2]
[2]The applicant was born in January 1975.

Following a trial, on 15 June 2018 a jury convicted the applicant of 23 of the 28 charges.[3] In relation to RZ, the jury found him guilty of five charges, including making a threat to inflict serious injury (one charge – charge 1); making a threat to…

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 Lewers (a pseudonym) v The Queen

Details

AGLC: Jasper Lewers (a pseudonym) [1] v The Queen [2019] VSCA 272
Case: [2019] VSCA 272
Decision Date: 21 November 2019

CaseChat Overview and Summary

The case of Lewers v The Queen involved an appellant convicted on 23 charges, including various acts of violence and sexual offences against his twin daughters. The High Court of Australia was tasked with evaluating the validity of the conviction and the sentencing. The primary issues for the court were whether the joinder of sexual and non-sexual offences in a single indictment was erroneous and whether improper cross-examination of a witness necessitated the severing of the indictment. Additionally, the court assessed whether the sentence imposed was manifestly excessive.

The court determined that the joinder of charges did not occasion an error as the sexual and non-sexual offences stemmed from a common factual origin. The court held that the trial counsel’s decision not to seek severance was a forensic choice that did not result in a substantial miscarriage of justice. Regarding the cross-examination, the court found that while it was cumbersome, it was not unfair. The court dismissed the appeal against conviction and sentence, emphasising the protection of the community as a primary consideration in sentencing.

The decision in R v Barrell and Wilson and De Jesus v The Queen was considered in assessing the propriety of the joinder and the adequacy of the cross-examination. Ultimately, the court found that the appellant’s total effective sentence of 12 years and 3 months, with a non-parole period of 8 years and 4 months, was not manifestly excessive given the protracted period of offending and the attendant violence.

The High Court refused the appellant leave to appeal against both the conviction and the sentence. The court’s decision upheld the conviction and the sentence, reflecting the gravity of the offences and the need for community protection.

Orders