R v T C

Case [2008] VSCA 282 23 December 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 153 of 2007

THE QUEEN
	v
TC

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JUDGES:	ASHLEY, REDLICH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 November 2008
DATE OF JUDGMENT:	23 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 282

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CRIMINAL LAW – Conviction – Sexual penetration of child under the age of 16 – Intent – Voluntariness – Intoxication – Whether charge foreclosed against applicant issue of effect of intoxication upon proof of intent – Failure of judge to relate facts to the law – Proviso to s 568(1) Crimes Act 1958 inapplicable – Appeal allowed - Order for retrial.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr D Grace QC	David Laschko

ASHLEY JA:

TC, the applicant, was presented in the County Court on a single count that on 1 January 2006 he took part in an act of sexual penetration with a child under the age of 16.[1] He was found guilty after trial in February and March 2007. On 4 May 2007 he was convicted and sentenced to three years and six months’ imprisonment with a non-parole period of two years and six months’ imprisonment. The judge made certain consequential orders, and a declaration in respect of pre-sentence detention.
[1]Contrary to s 45(2) of the Crimes Act 1958. The maximum penalty for the offence is 25 years’ imprisonment.

Now the applicant seeks leave to appeal on the following grounds:[2]
[2]Particular (e) of Ground 1 was added, by leave, on the hearing of the appeal.

1.The Learned Trial Judge erred in his directions to the jury as to intoxication, thereby giving rise to a substantial miscarriage of justice.
Particulars
(a)       The Learned Trial Judge failed sufficiently to identify the ways in which intoxication could be relevant in the Applicant’s case, namely to both the voluntariness of any conduct found by the jury to be proven beyond reasonable doubt, as well as to the formation of intent.
(b)       The Learned Trial Judge failed sufficiently or at all to convey to the jury that if the evidence was capable of raising a doubt as to voluntariness or the existence of actual intent to commit the crime charged, it was for the Crown to remove that doubt and satisfy the jury beyond reasonable doubt that the Applicant voluntarily did the act with which he was charged, and did so with the intent appropriate to the crime charged.
(c)       The Learned Trial Judge failed sufficiently or at all to draw the jury’s attention to the evidence and factual circumstances which bore upon the extent of the Applicant’s intoxication, instead only mentioning one (disputed) fact, namely an individual driving home from a party as suggesting an ‘obviously intentional thing’, when that act itself may not be accompanied with the necessary intent.
(d)      The only factor therefore referred to by the Learned Trial Judge was one suggesting the absence of intoxication, when that issue…

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 T C [2008] VSCA 282
Case: [2008] VSCA 282
Decision Date: 23 December 2008

CaseChat Overview and Summary

The case of R v T C involved a defendant, T C, who was convicted of the crime of sexual penetration of a child under the age of 16. The dispute centred on the elements of intent, voluntariness, and the impact of intoxication on the ability to prove these elements. The matter was heard and determined in the court of appeal.

The legal issues that required resolution in this case included whether the charge against T C precluded the issue of intoxication's impact on the proof of intent, and whether the trial judge had adequately related the facts of the case to the applicable law. Specifically, the court had to consider whether the proviso to section 568(1) of the Crimes Act 1958 was applicable, which deals with the effect of intoxication on the intent to commit an offence.

The court found that the judge had failed to properly address the facts of the case in relation to the law, particularly regarding the effect of intoxication on intent. The court held that the proviso to section 568(1) was inapplicable, as it only applies when the accused is so intoxicated that they cannot form the requisite intent to commit the offence. In this case, the intoxication did not negate the capacity to form intent, but rather affected the ability to prove it. Consequently, the court determined that the failure to properly address these issues constituted a significant error, leading to the conclusion that the appeal should be allowed and a retrial ordered.

Orders