R v DFA - [2001] VSCA 197

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 95 of 2000

THE QUEEN
	v.
DFA

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JUDGES:	CHARLES, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 October 2001
DATE OF JUDGMENT:	2 November 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 197	1^st Revision – 8 November 2001

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Criminal Law – Sexual offences – Incest and indecent assault – Insufficient evidence to support verdict of guilty – Whether “would have” is sufficient to describe alleged act – Inconsistent verdicts – Whether “all or nothing” case – Whether incest and indecent assault constitute one brief event, episode or transaction so that acquittal on one must lead to acquittal on the other – Unsafe and unsatisfactory verdict.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. R.A. Elston	K. Robertson Solicitor for Public Prosecutions
For the Applicant	Mr. O.P. Holdenson Q.C. Mr. P. Clarebrough	Clarebrough Pica

CHARLES, J.A.:

I agree with Chernov, J.A. that the application for leave to appeal against the convictions on counts 1 and 5 should succeed, and as to the convictions on counts 3 and 4 should fail.

I also agree that the Crown did not lead evidence to support its case on counts 1 and 5, for the reasons given by Chernov, J.A. I would accept the submission that, as to each of these counts, the complainant only described in evidence the act of sexual intercourse and gave no evidence that the applicant had touched the complainant’s vagina preceding the act of intercourse. In R. v. Whelan[1] Winneke, C.J., Barber and McInerney, JJ. said –

“In our view, the acts alleged to constitute the indecent assault were so close in point of time and so related to and bound up with the acts of penetration as to make it quite unreal and artificial to regard them as comprising a separate event, transaction or episode, and we think that no jury acting reasonably could regard them as such.
As the evidence, in our opinion, disclosed only one event, transaction or episode, and as the jury by their verdict of not guilty of rape negated the absence of consent by the prosecutrix in that event, transaction or episode, or the absence of belief by the appellant of non-consent on her part, it follows, in our view, that its verdict of indecent assault, an offence which, as we have said, also involved absence of consent or belief thereof on the part of the appellant as an essential ingredient, was inconsistent with its verdict of not guilty of rape.”

For like reasons I would also have held that a conviction on counts 1 and 5 was inconsistent with the acquittals on counts 2 and 6.

[1][1973] V.R. 268 at 270.

The position is different with respect to counts 3 and 4. Mr Holdenson argued that the prosecution evidence on these counts was inadequate and lacked probative force, but I would reject this submission for the reasons given by Chernov, J.A. These events were quite distinct from the incidents giving…

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 DFA

Details

AGLC: R v DFA [2001] VSCA 197
Case: [2001] VSCA 197
Decision Date: 2 November 2001

CaseChat Overview and Summary

In the case of R v DFA, the appellant faced charges of incest and indecent assault. The case was heard and determined by the court of appeal. The central dispute revolved around the sufficiency of the evidence presented to support the verdict of guilt and whether certain legal principles were correctly applied in the context of the charges.

The primary legal issues addressed by the court included whether the phrase “would have” was sufficient to describe the alleged act of incest, the compatibility of inconsistent verdicts in this context, and the applicability of the “all or nothing” principle to the charges of incest and indecent assault. The court also considered whether these charges constituted a single brief event, episode, or transaction, such that an acquittal on one charge necessarily led to an acquittal on the other.

The court found that the evidence was insufficient to support the verdict of guilty, particularly in relation to the use of the phrase “would have” to describe the alleged act. The court concluded that the principle of “all or nothing” did not apply to these charges as they did not constitute a single brief event. Consequently, the court determined that the verdict was unsafe and unsatisfactory, necessitating a reevaluation of the appellant's guilt.

The court ordered a new trial for the appellant on the charges of incest and indecent assault, given the determination that the previous verdict was unsafe and unsatisfactory. The decision underscored the importance of clear and sufficient evidence in criminal cases and the need for careful consideration of the principles applicable to multiple related charges.

Orders