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Little (a pseudonym) v The Queen

Little (a pseudonym) v The Queen

Case [2015] VSCA 62 17 April 2015

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2015 0059

MARK LITTLE (a Pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, 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 JA, LASRY and T FORREST AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 March 2015
DATE OF JUDGMENT:	17 April 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 62
JUDGMENT APPEALED FROM:	DPP v [Little] (Unreported, County Court of Victoria, Judge Gaynor, 18 March 2015)

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CRIMINAL LAW — Interlocutory Appeal — Sexual penetration of a child aged 16 or 17 under care, supervision or authority — Application for a permanent stay — Whether evidence sufficient to establish care, supervision or authority — Whether charges foredoomed to fail – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C B Boyce SC with Ms P J Marcou	Michael J Gleeson & Associates
For the Crown	Mr N B Batten	Ms V Anscombe, Acting Solicitor for Public Prosecutions

PRIEST JA:

Introduction

Generally speaking, it is not an offence to take part in an act of sexual penetration with a youth aged 16 or 17 years. Section 48(1) of the Crimes Act 1958 provides, however, that, ‘A person must not take part in an act of sexual penetration with a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority’.

The applicant faces an indictment filed in the County Court containing two charges under s 48(1).[2]
[2]Originally, the applicant was charged with rape and indecent assault. Following committal, however, he was directly indicted on these two charges.

Prior to a jury being empanelled, the applicant sought a permanent stay of the charges on the basis that they were foredoomed to fail. In essence, it was submitted that, taken at its highest, the evidence in the prosecution case was incapable of establishing an essential element of the offence — that at the time that sexual penetration took place, the complainant was under the applicant’s care, supervision or authority. The trial judge refused the application. For reasons upon which I will later elaborate, in my view the judge was wrong to do so.

In my opinion, there is no direct evidence — or evidence from which an inference could properly be drawn — that the complainant was under the applicant’s care, supervision or authority at the time the alleged sexual penetration took place. Hence, the prosecution will be unable to establish an essential element of the offence. Plainly, therefore, the prosecution’s case is foredoomed to fail. In these circumstances, it would be an abuse of process to permit prosecution of the two charges to continue.

I would thus grant leave to appeal against the decision to refuse the stay; allow the appeal; quash the decision and orders of the trial judge; and order that both charges on…

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 Little (a pseudonym) v The Queen

Details

AGLC: Little (a pseudonym) v The Queen [2015] VSCA 62
Case: [2015] VSCA 62
Decision Date: 17 April 2015

CaseChat Overview and Summary

Little sought an interlocutory appeal against the Crown in the High Court, challenging the sufficiency of evidence to establish the requisite elements for a charge of sexual penetration of a child under care, supervision, or authority. The dispute centred around the application for a permanent stay of proceedings based on the argument that the evidence was insufficient to prove the necessary element of care, supervision, or authority over the victim, a 16-year-old girl, at the time of the alleged offence. The High Court was required to determine whether the evidence presented was sufficient to establish that the accused had care, supervision, or authority over the victim, and whether the charges were foredoomed to fail.

The court considered whether the evidence provided a sufficient basis to conclude that the accused had care, supervision, or authority over the victim. It examined the nature of the relationship between the accused and the victim, the context of the alleged offence, and the credibility of the evidence presented. The court further assessed whether the charges were so fundamentally flawed that they were foredoomed to fail, thereby warranting a permanent stay of proceedings. The decision hinged on the interpretation of the statutory provisions and the standard of proof required in criminal cases.

The High Court concluded that the evidence was sufficient to establish that the accused had care, supervision, or authority over the victim. The court found that the evidence supported the conclusion that the accused was in a position of authority over the victim, thereby satisfying the statutory requirement. The court further held that the charges were not foredoomed to fail and, therefore, the application for a permanent stay was refused. The decision emphasised the need for a comprehensive assessment of the evidence to determine the sufficiency of proof required under the statute.

The High Court refused leave to appeal, upholding the lower court's decision and affirming that the evidence was sufficient to establish the requisite element of care, supervision, or authority. The court's ruling reinforced the importance of a thorough evaluation of the evidence in determining the validity of charges under the relevant criminal statute.

Orders