R v ADJ - [2005] VSCA 102

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 289 of 2003

THE QUEEN
	v.
ADJ

---

JUDGES:	WARREN, C.J., BATT and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 March 2005
DATE OF JUDGMENT:	4 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 102

---

CRIMINAL LAW – Incest and indecent acts (pleaded as “with” child under 16) – Directing daughter to assume, and photographing her in, indecent naked poses – Held to be indecent acts in her presence and to be within counts – Whether covert videos by applicant of victim showering and fact that one found hidden in his house in same place as videos of sexual acts between applicant and adult women and as sex aids admissible – Crimes Act 1958, s.47(1).

CRIMINAL LAW – Sentencing – Incest, indecent act (four counts) and possessing child pornography – Guilty plea to last-mentioned only – No relevant prior convictions – Total effective sentence of six years with three-and-a-half-years’ non-parole period not manifestly excessive.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Pullen SC	Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr. P.F. Tehan QC	Brendan Wilkinson

WARREN, C.J.:

I agree that the applications should be dismissed for the reasons of Batt, J.A. that I have had the advantage of reading in draft form.

BATT, J.A.:

Trial and sentence

On 17 September 2003 the applicant, who was born in May 1966, was presented in the County Court at Melbourne on four counts of committing[1] an indecent act with a child aged under 16, contrary to s.47 of the Crimes Act 1958 (counts 1, 3, 5 and 6), one count of committing an indecent act in the presence of a child aged under 16, contrary to the same section (count 2), two counts of incest, contrary to s.44(1) of the Crimes Act (counts 4 and 7) and one count of possessing child pornography contrary to s.70 of the Crimes Act (count 8). The victim in the case of the first seven counts was the applicant’s daughter, who was born in October 1988. (I shall sometimes call her “C”.) The maximum penalties applicable were imprisonment for 10 years for committing an indecent act, for 25 years for incest and for five years for possessing child pornography. After the trial judge had made certain preliminary rulings[2], the applicant was arraigned before him alone and pleaded not guilty to counts 1 to 7 (inclusive) and guilty to count 8.[3] The following day the applicant was arraigned on counts 1 to 7 inclusive in the presence of the jury panel and pleaded not guilty to all those counts.[4] A jury was empanelled and the trial proceeded.

[1]It is unnecessary in these reasons to refer to the statutory alternative of being a party to the commission of an indecent act.

[2]Including that the evidence challenged by ground 4 (below) relating to conviction was admissible.

[3]The transcript actually records the exact reverse.

[4]The transcript, as I construe it, inaccurately records that 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 R v ADJ

Details

AGLC: R v ADJ [2005] VSCA 102
Case: [2005] VSCA 102
Decision Date: 4 May 2005

CaseChat Overview and Summary

In the case of R v ADJ, the respondent was convicted of multiple counts of incest and indecent acts involving his daughter, along with possessing child pornography. The case was heard in a court that exercised its jurisdiction under the Crimes Act 1958. The primary dispute centred around the interpretation of the legal definitions and the admissibility of certain evidence pertaining to the charges of incest and indecent acts, as well as the appropriateness of the sentence imposed.

The court was required to determine whether the respondent's actions constituted indecent acts within the meaning of the statute and if certain evidence, including covert videos, was admissible. The respondent argued that the videos were not relevant to the charges of incest and indecent acts, and their admission would be prejudicial. However, the court found that the videos were relevant to the charges of incest and indecent acts, as they demonstrated the respondent's intent and involvement in the offences.

The court concluded that the respondent's actions constituted indecent acts in the presence of his daughter and that the covert videos were admissible as they were relevant to the charges. The court also considered the totality of the respondent's criminal conduct, including his possession of child pornography, and determined that the total effective sentence of six years with a non-parole period of three-and-a-half years was not manifestly excessive. Therefore, the court upheld the conviction and sentence imposed on the respondent.

Orders