R v Osborne - [2007] VSCA 250

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 26 of 2006

THE QUEEN
	v
CLINTON JAMES OSBORNE

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JUDGES:	VINCENT and NEAVE JJA and CURTAIN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 October 2007
DATE OF JUDGMENT:	19 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 250

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CRIMINAL LAW – Conviction – Sexual penetration of an child under the age of 16 – Applicant self-represented at trial – Whether failure to summarise witnesses called by the defence created imbalance in charge – Application granted – Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O P Holdenson, QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr G J Thomas, SC	Victoria Legal Aid

VINCENT JA:

I agree, for the reasons advanced by Curtain AJA, that this application should be granted, the appeal allowed and a re-trial ordered.

NEAVE JA

I agree with Curtain AJA that the appeal should be allowed and the matter remitted to the County Court for retrial.

CURTAIN AJA:

Clinton James Osborne was found guilty by jury verdict of eight counts of sexual penetration of a child under the age of 16 and two counts of indecent act with a child under the age of 16. The acts were alleged to have taken place at Shepparton, Point Lonsdale and Queenscliff. The applicant denied that the subject acts occurred and stated that he did not know the complainant’s age until after the period of offending. At the time of the alleged offences, the complainant was 14 and the applicant was 34.

The Crown called 11 witnesses in proof of its case. The applicant, who was unrepresented, gave sworn evidence and called four witnesses on his behalf.

The background

Mr Osborne operated a tattoo shop in Shepparton. The complainant had visited the shop on three occasions. She maintained that on the first occasion she told Mr Osborne her age. Count 1 occurred on the fourth visit to the shop when the complainant went there with a friend, Chelsea Cole. At one point Chelsea left the shop and the complainant alleges that she and Osborne went into the bedroom at the back of the shop and there the applicant digitally penetrated her. No-one else was present. Chelsea’s return to the shop activated the shop bell and the applicant walked out of the bedroom with the complainant and told Chelsea he was showing

the complainant where the toilet was. Chelsea Cole gave evidence that on this occasion only the applicant and the complainant were present when she returned to the shop, although she appeared to qualify her position in cross-examination when she stated she could not remember if there were others present at this time. Chelsea Cole gave evidence that the applicant gave the complainant a false tattoo. The complainant was wearing a T-shirt which read ‘Hot Guy Wanted’ and the applicant had read out those words. At one point the complainant’s sister came into the shop and the applicant spoke with her.

Count 2 related…

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 [2007] VSCA 250
Case: [2007] VSCA 250
Decision Date: 19 November 2007

CaseChat Overview and Summary

The case of R v Osborne involved the appellant, who was convicted of sexually penetrating a child under the age of sixteen. The appellant chose to represent himself during the trial and subsequently applied to set aside his conviction, arguing that the trial judge's handling of the evidence presented by the defence resulted in an imbalance in the trial. The application was heard in the Court of Appeal, which was tasked with determining whether the trial judge's failure to adequately summarise the defence witnesses' testimonies led to a miscarriage of justice.

The central legal issue before the court was whether the trial judge's conduct in not summarising the defence witnesses' testimonies, despite the appellant's request, created a significant imbalance in the trial process. The court needed to consider the principles of fairness and impartiality in the administration of justice, and whether the failure to provide a summary amounted to a miscarriage of justice that warranted a re-trial.

The Court of Appeal found that the trial judge's conduct did indeed create an imbalance in the trial, as the appellant was effectively denied the opportunity to effectively address and challenge the prosecution's case due to the absence of a summarised record of the defence witnesses' testimonies. The court held that this failure constituted a miscarriage of justice, and thus granted the appellant's application to set aside his conviction. As a result, the Court ordered a re-trial, emphasising the importance of ensuring a fair trial for all parties involved. The final orders of the court included the quashing of the appellant's conviction and the scheduling of a re-trial to address the procedural error identified.

Orders