R v Carter - [2009] VSCA 272

Revised

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 917 of 2008

THE QUEEN
	v
STEVEN WILLIAM CARTER

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JUDGES:	BUCHANAN and WEINBERG JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 November 2009
DATE OF JUDGMENT:	24 November 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 272
JUDGMENT APPEALED FROM:	R v Carter (Unreported, County Court of Victoria, 17 November 2008, Judge Leckie)

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CRIMINAL LAW – Applicant convicted of two counts of committing an indecent act with, or in the presence of, a child under the age of 16, and one count of attempting to take part in an act of sexual penetration with a child under the age of 16 – Direction as to standard of proof – Whether words ‘highest standard known to the law’ must be used – Whether criminal standard must be compared with civil standard – Inconsistency of verdicts – Whether counts 6 and 7 could produce different verdicts when based on testimony of same complainant and relevantly indistinguishable facts – Inconsistency irreconcilable – Conviction on count 6 quashed – Applicant re-sentenced to total effective sentence three years’ imprisonment with non-parole of two years and two months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr R Edney	Victoria Legal Aid

BUCHANAN JA:

I will ask Weinberg JA to deliver the first judgment.

WEINBERG JA:

On 22 August 2008, after a one week trial, the applicant was convicted in the County Court in the Latrobe Valley of two counts of committing an indecent act with, or in the presence of, a child under the age of 16 (counts 1 and 6), and one count of attempting to take part in an act of sexual penetration of a child under the age of 16 (count 3). Counts 1 and 3 concerned the same victim, C, and count 6 her step-sister, K. The applicant was acquitted on counts 2, 4, 5 and 7. Count 3 was an alternative to count 2.

After hearing a plea, the learned trial judge sentenced the applicant to 12 months' imprisonment on each of counts 1 and 6, and three years' imprisonment on count 3. His Honour directed that six months of the sentence imposed on count 1 and six months of the sentence imposed on count 6 be served concurrently with the sentence imposed on count 3. The total effective sentence was therefore four years' imprisonment. A non-parole period of two years and eight months was fixed.

The applicant now seeks leave to appeal against conviction. His Notice of Appeal originally contained four grounds. However, grounds 2 and 4 were abandoned. The remaining grounds in support of the application concern the direction given to the jury regarding the standard of proof, and an alleged inconsistency between the conviction on count 6, and the acquittal on count 7.

The standard of proof direction

Ground 1 is in the following terms:

1.The trial miscarried as a consequence of 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 Carter

Details

AGLC: R v Carter [2009] VSCA 272
Case: [2009] VSCA 272
Decision Date: 24 November 2009

CaseChat Overview and Summary

The case of R v Carter involved an applicant convicted of two counts of committing an indecent act with, or in the presence of, a child under the age of 16, and one count of attempting to take part in an act of sexual penetration with a child under the age of 16. The applicant appealed against his conviction and sentence, raising several issues regarding the direction given to the jury concerning the standard of proof and the inconsistency of the verdicts.

The legal issues before the court included whether the words ‘highest standard known to the law’ must be used when directing the jury as to the standard of proof, whether the criminal standard must be compared with the civil standard, and whether the inconsistency of the verdicts was irreconcilable. Specifically, the applicant argued that counts 6 and 7, which were based on the testimony of the same complainant and relevantly indistinguishable facts, could not produce different verdicts.

The court held that the direction given to the jury was insufficient, as it did not adequately inform them that they must be satisfied beyond reasonable doubt. This was a significant error that could have influenced the jury's decision. Regarding the inconsistency of the verdicts, the court found that the inconsistency was irreconcilable. Consequently, the conviction on count 6 was quashed. The applicant was re-sentenced to a total effective sentence of three years' imprisonment, with a non-parole period of two years and two months.

Orders