R v Osborne - [2009] VSCA 88

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 542 of 2008

THE QUEEN
	v
JOHN PHILIP OSBORNE

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JUDGES:	VINCENT and WEINBERG JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 May 2009
DATE OF JUDGMENT:	4 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 88

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CRIMINAL LAW – Conviction – Two complainants alleged sexual abuse over lengthy period – Counts framed in presentment on ‘between dates’ basis – Counts left to jury as ‘first occasion’ counts – Complainants unable to differentiate between ‘first occasion’ and any other occasion on which alleged abuse occurred – Convictions quashed on basis of R v DWB [2008] VSCA 223 – Uncharged acts – Need for direction that uncharged acts be proved beyond reasonable doubt – Failure to give such direction, where uncharged acts relied upon, leads to quashing of conviction

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr T Kassimatis	De Marco Lawyers

VINCENT JA:

I will invite Justice Weinberg to deliver the judgment of the Court.

WEINBERG JA:

After a trial in the County Court, the applicant was convicted on seven counts of having committed an indecent act with or in the presence of a child under the age of 16 (counts 1, 2, 3, 4, 5, 8 and 15). He was presented on five further such counts (counts 6, 7, 9, 12 and 14), two counts of sexual penetration (counts 11 and 13) and one count of rape (count 10), but was acquitted on these counts.

The applicant was sentenced to a total term of three years and nine months' imprisonment. A non-parole period of two years was fixed. He now seeks leave to appeal against conviction.

The facts may be briefly stated. There were two complainants, both sisters. Counts 1, 2, 3, 4 and 5 involved CW, the younger of those girls, who was born in April 1990. Counts 8 and 15 involved SW, the older sister, who was born in August 1988. The offences all took place between 1999 and 2004.

The applicant was well known to both girls. He was a friend of their father. They knew each other through the scouting movement. The offences occurred at different locations, including the applicant's home, the complainants' home, while on a camping trip on the Murray River, and at Telstra Dome. Broadly speaking, the applicant was regularly entrusted with the care of the girls by their father. He was alleged to have dealt with them indecently in a variety of different ways and on numerous occasions.

The case against the applicant was based largely, though not exclusively, upon the evidence of the two complainants. The applicant did not give evidence and did not call any witnesses on his behalf. Four of the counts, namely, counts 2, 3, 8 and 15, alleged conduct between dates that extended over a number of years. The Crown case in relation to those counts was put on the basis…

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 Osborne

Details

AGLC: R v Osborne [2009] VSCA 88
Case: [2009] VSCA 88
Decision Date: 4 May 2009

CaseChat Overview and Summary

In the case of R v Osborne, the appellant was convicted by a jury in the County Court of Victoria of multiple sexual offences against two complainants. The offences were alleged to have occurred over a lengthy period of time, with the counts in the presentment framed on a ‘between dates’ basis. The jury, however, was directed to consider the counts as ‘first occasion’ offences. The complainants were unable to specify the exact date of the first occasion of abuse, leading to difficulties in distinguishing between the first instance and other occasions of alleged abuse. The appellant appealed against his convictions, arguing that the trial judge failed to properly direct the jury regarding the need to prove the uncharged acts beyond reasonable doubt.

The primary legal issue before the court was whether the trial judge erred in not directing the jury that the uncharged acts must be proved beyond reasonable doubt. This was a significant issue, given that the jury's consideration of the uncharged acts was central to the appellant's convictions. The court had to determine whether the failure to provide such a direction rendered the convictions unsafe and unsatisfactory under section 20A(2)(a) of the Court of Appeal Act 1991. The court also considered whether the failure to provide the direction amounted to a significant procedural error under section 20A(2)(b) of the Act.

The court found that the trial judge’s failure to direct the jury that the uncharged acts had to be proved beyond reasonable doubt was a significant procedural error that rendered the convictions unsafe and unsatisfactory. The court emphasised the importance of such a direction in cases where uncharged acts are relied upon to establish a pattern of behaviour. The court quashed the convictions and ordered a retrial, in line with the decision in R v DWB. The court held that the failure to give the necessary direction constituted a significant procedural error that impacted the fairness of the trial and the reliability of the verdict. This was a crucial finding, as it underscored the necessity for clear and specific jury directions in criminal trials, particularly where uncharged acts are involved.

The court ordered a retrial of the appellant on the charges, ensuring that the jury would be properly directed on the necessity to prove any uncharged acts beyond reasonable doubt. This decision reinforced the importance of accurate and comprehensive jury directions in criminal proceedings, highlighting the potential consequences of failing to provide such directions. The outcome underscored the need for vigilance in ensuring that all procedural requirements are met, so as to maintain the integrity of the judicial process.

Orders