Criminal Law – Conviction and sentence – Incest – Failure by trial judge to direct jury that the act of penetration must be committed intentionally – Trial judge not assisted by counsel – Unsafe and unsatisfactory verdict – Insufficient evidence to establish guilt beyond reasonable doubt – Need for trial judge to assist the jury by relating evidence to the legal definition of “vagina” and the issue of penetration – Improper re-examination as to prior evidence given at committal – Verdict for lesser offence not substituted – Unable to conclude that jury must have been satisfied of mental element in lesser offence – Appeal allowed.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mrs C.M. Quin
Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant
Mr C.B. Boyce
Victoria Legal Aid
MAXWELL, P. NETTLE, J.A. REDLICH, A.J.A.
The applicant stands convicted on one count of incest, after a trial which took less than three days. In substance, the count alleged that on 13 December 2002 the applicant took part in an act of sexual penetration with his granddaughter, a person whom he knew to be his lineal descendant, in that he introduced his finger into her vagina. At the time of the offence, his granddaughter was 13 years old.
The facts are of short compass. On Friday 13 December 2002, the complainant went to the applicant’s house, where it was intended that she sleep overnight before being taken the following morning by the applicant to a bus in order to travel to a sporting event. The applicant purchased some Chinese food for the complainant for dinner. During the course of the meal the complainant consumed two UDL mixed vodka drinks, which the applicant had purchased for her. The applicant drank three or four stubbies of beer during this time. Following dinner, they watched a movie until the complainant complained of a stomach ache which caused her to go to bed. The complainant called out to the applicant to bring her a bucket because she was going to be sick. She then vomited a number of times. At some stage the complainant briefly fell asleep. She was wearing long hipster-style pyjama pants and underpants and a long sleeved T-shirt.
Upon awakening, the complainant allowed the applicant to rub her stomach. She was screaming at the applicant to take the pain away. She put his hand on her stomach to show him where the pain was. She was tossing about and moving her legs in an attempt to relieve the pain. The applicant rubbed her stomach with his hand underneath the top of her pyjama pants and on top of her underpants. In evidence in chief the complainant…
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.
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Details
AGLC
R v AJS [2005] VSCA 288
Case
[2005] VSCA 288
Decision Date
CaseChat Overview and Summary
The case of R v AJS involves the appellant, AJS, who was convicted of incest and sentenced by the County Court of Victoria. The conviction arose from an incident where AJS was accused of engaging in sexual intercourse with his stepdaughter. The appeal to the Court of Appeal was based on the contention that the trial judge failed to properly direct the jury regarding the necessary intent for the act of penetration and the definition of "vagina," which are critical elements in establishing the offence of incest under the Crimes Act 1958 (Vic). Furthermore, it was argued that the trial judge did not sufficiently assist the jury in relating the evidence to these legal definitions, resulting in an unsafe and unsatisfactory verdict.
The primary legal issues before the Court of Appeal were whether the trial judge's directions to the jury were adequate in guiding them on the essential components of the offence, particularly the intent and the definition of penetration. Additionally, the court had to determine if the verdict for the lesser offence of sexual penetration without consent was properly considered by the jury and whether the evidence was sufficient to establish guilt beyond reasonable doubt. The Court needed to assess if the trial judge's failure to assist the jury constituted a miscarriage of justice that warranted the setting aside of the conviction.
In its reasoning, the Court of Appeal found that the trial judge's directions to the jury were indeed deficient in addressing the critical aspects of the offence, specifically the intent required for penetration and the legal definition of "vagina." The court emphasised the necessity for the trial judge to ensure that the jury was properly informed about these elements to make an informed decision. The Court further concluded that the evidence presented did not conclusively establish the necessary mental element for the lesser offence of sexual penetration without consent, rendering the verdict unsafe. Consequently, the appeal was allowed, the conviction was quashed, and a re-trial was ordered. The court did not substitute the lesser offence verdict as it could not be certain that the jury had been satisfied of the mental element required for this offence.