R v RL

Case [2009] VSCA 95 19 May 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 509 of 2008

THE QUEEN
	v
RL

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JUDGES:	NETTLE and DODDS-STREETON JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 April 2009
DATE OF JUDGMENT:	19 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 95

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Criminal Law – Conviction – Indecent assault of a child under the age of 16 years – Appellant convicted on 17 counts and sentenced to five years and 10 months’ imprisonment with a non-parole period of three years and six months - Whether evidence sufficient to support two particular counts – Whether verdicts on remaining counts unsafe and unsatisfactory – Whether judge failed properly to direct jury as to prior inconsistent statements – Whether forensic disadvantage resulted from amended presentment – Appeal allowed in respect of three counts – Appellant re-sentenced on remaining counts to a term of five years’ imprisonment with a non-parole period of three years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr S R Johns	Leanne Warren & Associates

NETTLE JA:

Following a 10 day trial in the County Court at Melbourne in November 2007, the applicant was convicted of 17 counts of unlawful and indecent assault of a girl and sentenced to a total effective sentence of five years and 10 months’ imprisonment with a non-parole period of three years and six months. He now applies for leave to appeal against conviction and sentence.

The case at trial

The offences were alleged to have occurred between 1 January 1979 and 31 December 1980 at the applicant’s home in Greensborough. The applicant was then between 22 and 24 years of age and not long married. He and his wife had recently moved into the house and he was in the process of digging out a pool room underneath it. At the time, the complainant was a little girl of 11 or 12 years of age and a school friend of applicant’s younger sister. On several occasions, she accompanied the applicant’s sister to the applicant’s home ostensibly to help with the work.

The offending was alleged to have occurred on four separate occasions, of which more detail later. In general, however, as the trial judge described it, on each occasion the complainant visited the applicant’s home, the applicant took her to the bedroom and there engaged in conduct comprised of kissing her with his open mouth, touching her vagina, rubbing his penis over her body, digitally penetrating her vagina and touching her breasts and buttocks. There was also one count of attempted penetration of her vagina with his penis, one of placing her hand over his penis and causing her to masturbate him to ejaculation and one of touching the complainants’ bottom in the area of her anus.

The defence case was than none of the alleged conduct ever occurred and the applicant gave evidence in which he denied that it occurred.

Ground 1 – Whether…

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 RL

Details

AGLC: R v RL [2009] VSCA 95
Case: [2009] VSCA 95
Decision Date: 19 May 2009

CaseChat Overview and Summary

In the case of R v RL, the appellant was convicted on 17 counts of indecent assault of a child under the age of 16 years. He was sentenced to a total term of imprisonment of five years and ten months, with a non-parole period of three years and six months. The appellant appealed his conviction and sentence, arguing that the evidence was insufficient to support two particular counts, that the verdicts on the remaining counts were unsafe and unsatisfactory, and that the trial judge failed to properly direct the jury as to prior inconsistent statements. Additionally, the appellant argued that he was placed at a forensic disadvantage due to an amended presentment.

The legal issues before the court were whether the evidence was sufficient to support the two particular counts of indecent assault, whether the verdicts on the remaining counts were unsafe and unsatisfactory, whether the trial judge properly directed the jury as to prior inconsistent statements, and whether the appellant was placed at a forensic disadvantage due to the amended presentment. The court considered these issues in light of the applicable law and principles of criminal procedure.

The court found that the evidence was sufficient to support the two particular counts of indecent assault, and that the verdicts on the remaining counts were safe and satisfactory. However, the court found that the trial judge failed to properly direct the jury as to prior inconsistent statements, and that this resulted in a forensic disadvantage for the appellant. The court also found that the amended presentment did not place the appellant at a forensic disadvantage. The court allowed the appeal in respect of three counts, and re-sentenced the appellant on the remaining counts to a term of five years’ imprisonment with a non-parole period of three years.

The court's decision highlights the importance of proper jury directions in criminal trials, and the need for courts to ensure that all parties are treated fairly and equally in the criminal justice process. The decision also underscores the importance of carefully considering the evidence in criminal trials, and the need for courts to ensure that verdicts are based on sufficient and reliable evidence.

Orders