M C v The Queen

[2010] VSCA 324

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0079

MC

v

THE QUEEN

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JUDGES	NEAVE and HARPER JJA and ROSS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 November 2010
DATE OF JUDGMENT	3 December 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 324
JUDGMENT APPEALED FROM	(Unreported, County Court of Victoria, Judge Duggan, 19 March 2010)

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CRIMINAL LAW – Conviction – Sentence – Sexual penetration of a child under the age of 16 years – Verdict reasonably open – Crown concession – Failure to make Zoneff and Grech directions – Miscarriage of justice – Application granted and appeal allowed – Conviction quashed – New trial ordered.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr G M Hughan	Ambi Associates
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

1. I have had the advantage of reading the judgment of Ross AJA in draft form.  For the reasons given by his Honour, I would grant leave to appeal against conviction, allow the appeal and order a new trial.

HARPER JA:

1. I agree.

ROSS AJA:

1. On 23 February 2010 the applicant, MC, was convicted by majority verdict of one count of sexual penetration of a child under the age of 16 years.  At the time of the offending the complainant was aged 14 and the applicant was 36 years of age.  The penetration occurred in the context of an ongoing relationship between the complainant and the applicant.

1. Following a plea, the applicant was sentenced to two years imprisonment, with a one year non-parole period.

1. The applicant appeals against conviction and sentence.  For reasons which will become apparent it is only necessary to deal with the grounds advanced in support of the conviction appeal.

1. The first ground of the appeal against conviction is that it was not reasonably open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt.  The question which this Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied, beyond reasonable doubt, that the accused was guilty.[1]  This is a question of fact.[2]

[1]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); affirmed in R v Nguyen [2010] HCA 38.

[2]R v Nguyen [2010] HCA 38, [33] (Hayne, Heydon, Crennan, Kiefel and Bell JJ).

1. A guilty verdict is reasonably open to a jury if no aspect of the evidence obliged – as distinct from entitled – the jury to come to a different conclusion.  As Hayne J (with whom Gleeson CJ and Heydon J agreed) observed in Libke v The Queen:

But the question for an appellate court is whether it was open to the jury to be satisfied beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.  It is not sufficient to…