Mane v The King - [2022] VSCA 270

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0109

TUSHAR MANE	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, T FORREST and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2022
DATE OF JUDGMENT:	8 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 270
JUDGMENT APPEALED FROM:	Unreported, County Court of Victoria, Judge Marich, 14 July 2022

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of three charges of indecent act with a child under 16 – Applicant acquitted of three charges of indecent act with a child under 16 – Whether guilty verdicts inconsistent with acquittal verdicts – Whether guilty verdicts cannot be supported having regard to the evidence – Appeal allowed – Verdict of acquittal ordered on one charge – New trial ordered on two charges.

M v The Queen (1994) 181 CLR 487; Mackenzie v The Queen (1996) 190 CLR 348; Pell v The Queen (2022) 268 CLR 123; MFA v The Queen (2022) 213 CLR 606; Danise v The Queen [2022] HCA 25; Arbogast v The Queen [2022] VSCA 143 and Landale (a pseudonym) v The Queen [2022] VSCA 121 referred to.

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Counsel
Applicant:		Mr J Manning
Respondent:		Mr P Bourke KC
Solicitors
Applicant:	Melasecca Kelly & Zayler
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA
TAYLOR JA:

After a seven day trial in the County Court, the applicant was convicted of three charges of indecent act with a child under 16 (charges 1, 7 and 8). He was sentenced to a total effective sentence of 3 years and 9 months’ imprisonment with a minimum non-parole term of 2 years.
The applicant was acquitted of three further charges of indecent act with a child under 16 (charges 2, 3 and 5) and one charge of sexual penetration of a child under 16 (charge 4). A verdict of not guilty was directed by the trial judge on one charge of indecent act with a child under 16 (charge 6).
The charges related to four separate incidents, said to have occurred over three separate days. We shall describe those days as:
(a)The first sleepover (charges 1 and 2).
(b)Lysterfield Lake (charges 3, 4) and its sequelae (charge 5).
(c)The second sleepover (charges 6, 7 and 8) .
The applicant’s Grounds of Appeal are:
•Ground 1(a): the guilty verdict on charge 1 is inconsistent with the verdict of acquittal on charge 2.
•Ground 1(b): the guilty verdicts on charges 7 and 8 are inconsistent with the verdict of acquittal on charge 2.
•Ground 2: the guilty verdict on charges 1, 7 and 8 are unreasonable and cannot be supported having regard to the evidence.
The respondent concedes that Ground 1(a) is made out. We have concluded that this concession is well-made. We shall explain our reasons for this conclusion after providing a short factual summary together with a review of relevant legal principles.

Factual summary

The offending was said to have occurred in…

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 Mane v The King

Details

AGLC: Mane v The King [2022] VSCA 270
Case: [2022] VSCA 270
Decision Date: 8 December 2022

CaseChat Overview and Summary

In the case of Mane v The King, the applicant was convicted by a jury of three counts of indecent act with a child under 16. The applicant was acquitted on three other counts of the same offence. The applicant appealed the conviction on the grounds that the guilty verdicts were inconsistent with the acquittal verdicts, and that the guilty verdicts could not be supported in light of the evidence. The High Court of Australia heard the appeal and determined the legal issues presented.

The primary legal issue before the court was whether the guilty verdicts on three counts of indecent act with a child under 16 were inconsistent with the acquittal verdicts on three other counts of the same offence. The court also considered whether the guilty verdicts could be supported by the evidence presented at trial. The applicant argued that the verdicts were inconsistent and could not be supported, and that the verdicts should be quashed and a verdict of acquittal ordered on all six counts. The Crown argued that the verdicts were consistent and supported by the evidence, and that the appeal should be dismissed.

The court held that the guilty verdicts on three counts of indecent act with a child under 16 were inconsistent with the acquittal verdicts on three other counts of the same offence. The court found that the evidence did not support the guilty verdicts on the three counts, and that the verdicts should be quashed. The court ordered a verdict of acquittal on one count, and ordered a new trial on the two remaining counts on which the applicant was convicted. The applicant's appeal was therefore allowed in part.

The court ordered a verdict of acquittal on one count of indecent act with a child under 16, and ordered a new trial on two counts of the same offence. The conviction on the three counts on which the applicant was acquitted was upheld. The court's decision provides guidance on the requirements for consistency in jury verdicts, and the standard of proof required to support a guilty verdict in criminal cases.

Orders