Criminal Law – Appeal against conviction - Indecent act with a child under the age of 16 years – Adequacy of directions given concerning circumstantial evidence – Jury question ‘does the verdict boil down to who we believe’ – Extent to which direction identified in Liberato v The Queen (1985) 159 CLR 507 required – Whether necessary to refer again to need to exclude rational inferences – Inference of guilt only rational inference – No material error in instruction given – Verdict not unreasonable – Application of proviso to s 568(1) Crimes Act 1958 – Weiss v The Queen (2005) 224 CLR 300 applied – Any irregularity did not impinge on credibility of principal Crown witness – No innocent hypothesis open.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr J D McArdle QC
Ms A Cannon, Solicitor for Public prosecutions
For the Applicant
Mr M J Croucher
Clarebrough Pica
WARREN CJ:
For the reasons expressed by Redlich JA, I would refuse the application for leave to appeal against conviction.
REDLICH JA:
Following a trial before a judge and jury in the County Court, the applicant, K, was convicted on one count of committing an indecent act with a child under the age of 16 years and was sentenced to six months’ imprisonment, such sentence being wholly suspended for a period of three years. The applicant now appeals against his conviction.
The trial was very short. The evidence of the five prosecution witnesses, closing addresses by counsel for both the prosecution and the defence and the trial judge’s charge were all completed in the course of one day.
The applicant seeks leave to appeal against his conviction on grounds which relate to the adequacy of the directions given concerning circumstantial evidence, the answer given by the trial judge to the jury question ‘does the verdict boil down to who we believe’ and whether the verdict of guilty was unreasonable or could not be supported having regard to the evidence.
It is convenient to set out a summary of the evidence and refer to some of the circumstances of the trial. The complainant who was aged 13 at the time of this offence was a friend of the applicant’s daughter, S. On the last weekend of the school holidays in July 2004, the complainant went to stay with S at the applicant’s house in Mill Park. The applicant who was divorced, had moved into the house some two weeks earlier. The complainant had stayed at the house with S on one prior occasion. On the Friday night the complainant slept on a couch in the lounge room. On that night it appears that the applicant and his daughter, S, slept in the applicant’s bedroom in…
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 KDY [2008] VSCA 104
Case
[2008] VSCA 104
Decision Date
CaseChat Overview and Summary
The appellant was convicted in the County Court of Victoria of indecently dealing with a child under the age of 16 years. The appellant appealed against his conviction to the Court of Appeal, arguing that the trial judge had failed to adequately direct the jury on the adequacy of circumstantial evidence, and that the jury question was inappropriate. The appeal was heard by the Court of Appeal, which was required to consider whether the trial judge had erred in the directions given to the jury concerning circumstantial evidence, and whether the jury question was appropriate.
The Court of Appeal held that the trial judge had given appropriate directions to the jury concerning circumstantial evidence, and that the jury question was appropriate. The Court found that the direction given by the trial judge was consistent with the direction identified in Liberato v The Queen, and that there was no material error in the instruction given. The Court found that the inference of guilt was the only rational inference that could be drawn from the evidence, and that the jury was not required to exclude rational inferences. The Court further found that any irregularity in the trial did not impinge on the credibility of the principal Crown witness, and that no innocent hypothesis was open. The Court of Appeal held that the verdict was not unreasonable, and that the appeal was dismissed.
The Court of Appeal applied the proviso to s 568(1) Crimes Act 1958, as set out in Weiss v The Queen, and held that any irregularity did not impinge on the credibility of the principal Crown witness, and that no innocent hypothesis was open. The Court of Appeal found that the trial judge had adequately directed the jury on the adequacy of circumstantial evidence, and that the jury question was appropriate. The Court of Appeal dismissed the appeal, and affirmed the conviction of the appellant.