R v Jackson - [2004] VSCA 224

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.133 of 2003

THE QUEEN
	v.
GREGORY KEITH JACKSON

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JUDGES:	BATT, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 November 2004
DATE OF JUDGMENT:	30 November 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 224

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Criminal Law - Committing an indecent act on a child - Questions by counsel for accused suggested delay in making complaint - Use of word "delay" unnecessary - Judge required to inform the jury that there may be good reason for delay pursuant to s.61(1)(b) of the Crimes Act 1958 - Verdict not unsafe or unsatisfactory.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr N. Crafti	Dean Cole & Associates

BATT, J.A.:

I will ask Buchanan, J.A. to give the first judgment.

BUCHANAN, J.A.:

On 4 March 2003 the applicant was arraigned and pleaded not guilty to a presentment containing two counts of committing an indecent act with a child under the age of 16 years and one count of committing an indecent act in the presence of a child under the age of 16 years. After a trial the jury returned a verdict of guilty on one of the counts of committing an indecent act and acquitted the applicant on the other counts. A plea was made on behalf of the applicant and he was sentenced to be imprisoned for a term of six months, but the sentence was wholly suspended for a period of three years.

The applicant now seeks leave to appeal against his conviction on the following grounds:

"1.That in all the circumstances of the case the conviction of the applicant is unsafe and unsatisfactory.
2.That the learned trial judge was in error in failing to discharge the jury as a result of the learned prosecutor asking the accused about his experience of young people complaining.
3.Alternatively to ground 2 herein, that the learned trial judge was in error in failing to discharge the jury when it enquired about the accused's experience of young children complaining.
4.That the learned trial judge was in error in giving the jury the directions of law which he gave concerning reasons which young children may have in delaying any complaint which they might have."

The offences were alleged to have occurred between 1 December 1992 and 15 February 1993 when the complainant was aged 7 years and the applicant was aged 32 years. The complainant's family and other families spent the Christmas holidays camping in the Fraser National Park at Eildon. The applicant was part of the group.

The indecent act the subject matter of count 1 was alleged to have occurred when the complainant's family, the applicant and a number of other adults and children were picnicking and water-skiing at a place called Woolshed. The complainant and a friend were digging in the sand on the bank of Lake Eildon. The complainant was wearing pink Hawaiian board shorts with a nylon…

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 Jackson

Details

AGLC: R v Jackson [2004] VSCA 224
Case: [2004] VSCA 224
Decision Date: 30 November 2004

CaseChat Overview and Summary

In the matter of the Regina versus Jackson, the court was presented with a case where the defendant was charged with committing an indecent act on a child. The crux of the dispute was whether the trial judge had correctly guided the jury on the relevance of any delay in the child's complaint about the incident. The case was heard in the High Court of Australia.

The primary legal issue that the court had to address was whether the trial judge's use of the word "delay" in instructing the jury about the child's delay in making the complaint was appropriate. The defendant's counsel argued that this term could potentially prejudice the jury against the accused. The court was required to determine if the trial judge was correct in informing the jury that there could be legitimate reasons for the delay in making the complaint, as per section 61(1)(b) of the Crimes Act 1958.

The High Court found that while the use of the term "delay" could be seen as somewhat prejudicial, it did not render the verdict unsafe or unsatisfactory. The court concluded that the trial judge had adequately instructed the jury on the potential reasons for any delay in reporting the incident. The judge's direction was consistent with the statutory provision, ensuring that the jury considered all relevant factors before reaching a verdict. The court held that the verdict was not compromised by the use of the word "delay."

No further orders were made by the court beyond its findings on the adequacy of the trial judge's instructions to the jury. The decision was based strictly on the interpretation and application of the relevant statutory provisions and their effect on the jury's understanding of the case.

Orders