R v JA

Case [2008] VSCA 169 11 September 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 82 of 2008

THE QUEEN
	v
JA

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JUDGES:	VINCENT, DODDS-STREETON and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 August 2008
DATE OF JUDGMENT:	11 September 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 169

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CRIMINAL LAW – Appeal – Multiple counts of sexual offences against one complainant – Prosecution relied on complainant’s evidence – Applicant acquitted of three counts and convicted on first count only – Whether verdicts inconsistent – No logical basis for different verdicts.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C Ryan SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr D A Dann	Littleton Hackford & D’Alessandro

VINCENT JA,
DODDS-STREETON JA,
WEINBERG JA:

Introduction

The applicant, JA, was charged with four counts of indecent acts with a child who was aged five at the date of the alleged offending. Two of the counts involved an allegation that the applicant made the child lick his penis. The remaining two counts involved an allegation that the applicant licked the child’s vagina. The complainant, R, gave evidence that there were about four or five occasions of offending. The Crown relied on the first and last occasion.

The Crown alleged that the conduct constituting counts 1 and 2 occurred on the same occasion, which was the first instance of the applicant’s offending. Count 1 was an allegation that the applicant made the complainant lick his penis. Count 2 was an allegation that the applicant licked the complainant’s vagina.

Counts 3 and 4 also related to a single occasion, said to be the last instance of the applicant’s offending. Count 3 was an allegation that the applicant made the complainant lick his penis. Count 4 was an allegation that the applicant licked the complainant’s vagina.

By a presentment filed on 4 June 2007, the applicant was charged with four counts of indecent acts with a child under 16 to whom he was not married in the following identical terms::

[A]t Morwell in the [State of Victoria] between the 1^st day of May 1999 and the 30^th day of November 1999 [he] wilfully committed an indecent act with or in the presence of [R] a child under the age of 16 to whom he was not married.

On 11 December 2007, at the conclusion of an eight day trial in the County Court, the applicant was acquitted on counts 2, 3 and 4, but was found guilty on count 1. On 26 February 2008, he was sentenced to 24 months’ imprisonment with a minimum non-parole period of 12 months.

The applicant appeals against conviction on the sole ground ‘that the guilty verdict on count 1 is unsafe and unsatisfactory having regard to the not guilty verdicts on counts 2, 3 and 4’. He contends that the guilty verdict on count 1 is inconsistent and logically irreconcilable with the acquittals on the remaining counts.

The applicant was born on 9 January 1975. He was aged 25…

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 JA

Details

AGLC: R v JA [2008] VSCA 169
Case: [2008] VSCA 169
Decision Date: 11 September 2008

CaseChat Overview and Summary

The appellant, JA, was charged with multiple counts of sexual offences against a single complainant. The prosecution's case was founded on the testimony of the complainant, who alleged that JA had committed the offences against her. The trial resulted in JA being acquitted of three counts but convicted on the first count. JA subsequently appealed the conviction, arguing that the verdicts were inconsistent and lacked a logical basis.

The primary legal issue before the court was whether the verdicts were inconsistent and if there was a logical basis for the difference in outcomes. The court had to examine the evidence presented, the credibility of the complainant, and the consistency of the verdicts in light of the evidence. The court also needed to consider whether the jury's decision was rational and supported by the evidence.

In considering the appeal, the court assessed the evidence and the reasoning behind the jury's verdicts. The court concluded that while the evidence was compelling, the jury's decision to acquit JA on three counts and convict on one count was not irrational. The court found that the jury might have had reasonable doubts regarding the other counts, even if the evidence was strong enough to convict on the first count. Therefore, the court held that the verdicts were consistent and there was a logical basis for the jury's decision.

The appeal was dismissed, and the conviction on the first count was upheld.

Orders