R v SLJ

Case [2010] VSCA 16 19 February 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 557 of 2009

THE QUEEN
	Respondent
v
SLJ
	Applicant

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JUDGES:	MAXWELL P, BUCHANAN and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 January 2010
DATE OF ORDERS:	19 January 2010
DATE OF JUDGMENT:	19 February 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 16
JUDGMENT APPEALED FROM:	R v SLJ (Unreported, County Court of Victoria, Judge Howard, 4 March 2009)

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CRIMINAL LAW – Appeal – Conviction – maintain a sexual relationship with a child under 16 – Sufficiency of evidence – Requirement of proof of three ‘occasions’ on which sexual offence committed – Generality of complainant’s evidence – Whether relevant occasions identified with sufficient specificity – Whether trial judge erred in directing jury that evidence of course of conduct could suffice – Crown concession of error – Whether proviso applicable – Appeal allowed – Conviction quashed – Retrial ordered – KBT v The Queen (1997) 191 CLR 417, KRM v The Queen (2001) 206 CLR 221 applied – Crimes Act 1958 (Vic) s 47A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr O P Holdenson QC	James Dowsley & Associates

MAXWELL P
BUCHANAN JA
BONGIORNO JA:

After a trial in the County Court, the applicant was convicted on one count of maintaining a sexual relationship with a child under the age of 16 years, contrary to the provisions of s 47A of the Crimes Act 1958 (Vic) (‘the Act’).[1] He was sentenced to nine years’ imprisonment with a non-parole period of six years.
[1]The name of the offence was changed by the Crimes (Sexual Offences) Act 2006 (Vic). It is now ‘persistent sexual abuse of a child under the age of 16’.

The applicant sought leave to appeal against his conviction. At the conclusion of argument, we announced that the appeal would be allowed, the conviction set aside and the sentence quashed. We said that we would publish our reasons in due course. These are those reasons.

Proof of the offence

To prove the offence, the prosecution was required by s 47A(2) to establish that, on three separate ‘occasions’ during a particular period and while the child was under the age of 16 years, the accused ‘did an act in relation to the child which would constitute an offence’ against certain provisions of the Act.[2] The relevant offences included sexual penetration of a child under 16[3] and committing an indecent act with or in the presence of a child under 16.[4]
[2]Section 47A(2).
[3]Section 45.
[4]Section 47.

Subsection 47A(3) addresses the question of proof. It provides:

It is not necessary to prove an act referred to in subsection (2)(a) or (b) with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against subsection (1).

Initially it appeared that the issue on…

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 SLJ

Details

AGLC: R v SLJ [2010] VSCA 16
Case: [2010] VSCA 16
Decision Date: 19 February 2010

CaseChat Overview and Summary

In the matter of the Crown versus SLJ, the appellant was convicted of maintaining a sexual relationship with a child under 16 years of age, contrary to section 47A of the Crimes Act 1958 (Vic). The case was heard in the Court of Appeal, Victoria. The appellant sought to appeal the conviction on the basis of the sufficiency of evidence provided at trial, specifically whether the evidence was sufficient to identify three distinct occasions on which the offence was committed.

The legal issues the court was required to decide related to the interpretation of section 47A and the requirement of proof of three occasions. The appellant argued that the trial judge had erred by directing the jury that evidence of a course of conduct could suffice in lieu of identifying three separate occasions. The court had to determine whether the evidence provided was sufficient to identify the occasions with specificity and whether the trial judge's direction to the jury was correct.

The court found that the trial judge had erred in directing the jury that evidence of a course of conduct could suffice in the absence of identifying three separate occasions. The court held that the generality of the complainant's evidence did not allow for the occasions to be identified with the required specificity. The Crown conceded that this was an error; however, the court found that the proviso in section 47A(4) did not apply as the error was not a mere irregularity. The appeal was allowed, the conviction was quashed, and a retrial was ordered.

The court emphasised that for a conviction under section 47A, the prosecution must prove that the accused maintained a sexual relationship with a child under 16 years of age on three occasions. The court held that the evidence in this case was not sufficient to identify the occasions with the required specificity, and as such, the conviction could not stand. The court ordered a retrial to provide an opportunity for the prosecution to provide sufficient evidence to identify the occasions with the required specificity.

Orders