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MB v The Queen

MB v The Queen

Case [2012] VSCA 248 25 September 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0168

M B
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, HARPER JA and BEACH AJA
WHERE HELD:	SHEPPARTON
DATE OF HEARING:	25 September 2012
DATE OF JUDGMENT:	25 September 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 248

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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 16 under supervision or authority – Stalking – Whether judge’s directions adequate – Grounds of appeal raising issues not raised at trial – Directions adequate – Appeal dismissed – R v AJS (2005) 12 VR 563, Momcilovic v The Queen (2010) 25 VR 436, R v Getachew (2012) 286 ALR 196 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Victoria Legal Aid
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I invite Beach AJA to deliver the first judgment.

BEACH AJA:

Introduction

On 18 November 2010, after a seven day trial in the County Court at Shepparton, the appellant was convicted of six charges of sexual penetration of a child under 16, under care, supervision or authority; one charge of indecent act with or in the presence of a child; and one charge of stalking. Following his conviction, the appellant was sentenced to a total effective sentence of nine years’ imprisonment with a non-parole period of seven years.

On 3 February 2012, this Court[1] granted the appellant leave to appeal against conviction on the following ground:

The learned trial judge erred by failing to give:
(a)any direction as to the permissible and impermissible use of the evidence of the sexual offences with regards to the stalking allegation; and
(b)any direction as to the impermissible use of the stalking allegation with regards to the sexual offences.
[1]Hansen JA.

The appellant now seeks leave in respect of two further proposed grounds of appeal:

2.The trial miscarried as a consequence of the judge’s failure to direct the jury on the appellant’s lie to the police that he did not keep or have condoms at his house.
3.The trial miscarried by reason of the judge’s failure properly or at all to warn the jury about the complainant’s possible motive to fabricate the substance of her allegations. In particular, the judge erred by failing to direct that:
(a)the defence had submitted that the complainant has a motive for alleging falsely that she had been interfered with by the appellant;
(b) rejecting the defence’s submission was not the same as accepting that the complainant had told the truth;
(c)rejecting one motive did not mean the complainant was not moved to lie by some other motive; and
(d)rejecting the motive asserted by the defence did not make the complainant’s account any more credible.

Circumstances of the alleged offending

The complainant was 10 and 11 years old at the time of the alleged offending. At the same time, the appellant was 48 and 49 years old. He was a scout leader who met the…

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 MB v The Queen

Details

AGLC: MB v The Queen [2012] VSCA 248
Case: [2012] VSCA 248
Decision Date: 25 September 2012

CaseChat Overview and Summary

MB appealed against a conviction for sexually penetrating a child under 16 while having authority or supervision over them, as well as stalking that child. The Court of Appeal was asked to review the adequacy of directions given by the trial judge, as well as the grounds of appeal which were not raised during the trial. The appellant argued that the trial judge's directions were inadequate and that the grounds of appeal were valid. The central issues were whether the trial judge's directions were sufficient and whether the grounds of appeal, which were not raised at trial, could be considered on appeal. The court held that the trial judge's directions were adequate and that the grounds of appeal were not valid because they were not raised at trial. The appeal was dismissed, with the court finding that the trial judge's directions were appropriate, and that the grounds of appeal were not properly before the court. The decision references several previous cases, including R v AJS, Momcilovic v The Queen, and R v Getachew, which support the court's reasoning. The final order was that the appeal was dismissed, and the conviction and sentence remained unchanged.

Orders