R v VST - [2003] VSCA 35

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.224 of 2001

THE QUEEN
	v.
V.S.T.

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JUDGES:	WINNEKE, P. and PHILLIPS and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 March 2003
DATE OF JUDGMENT:	15 April 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 35

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Criminal law – Sexual abuse of young daughter – Majority verdict taken – Whether jury had deliberated for “at least six hours” – Calculation of time allowed – Whether need for “perseverance direction” – Motive to lie suggested by defence – Whether prosecutor’s comment inappropriate – Whether directions on weighing complainant’s credibility by “categories” or directions as to delay in complaint constituted error – Right of complainant to seek exemption from giving evidence not canvassed at trial - Appeal dismissed – Juries Act 2000, s.46(1),(2),(3), Crimes Act 1958, ss.61, 400.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. T. Gyorffy	Ms K. Robertson Solicitor for Public Prosecutions
For the Applicant	Mr. P.F. Tehan, Q.C. with Ms G. Tsirmbas	Patrick Dwyer

WINNEKE, P.:

I agree with Phillips, J.A. that the application should be dismissed for the reasons he has stated.

PHILLIPS, J.A.:

This is an application for leave to appeal against conviction. The applicant, who is now 38 years old, pleaded not guilty in the County Court to a presentment containing 11 counts of sexual misconduct with his daughter. The offences were allegedly committed between 10 April 1999 and 30 May 2000, which made the complainant 13 or 14 years old at the time, she having been born on 10 April 1986. The trial lasted four days and shortly before 5 p.m. on 21 June the judge accepted from the jury majority verdicts of guilty on each count. The applicant admitted two prior convictions of little relevance, in 1985, and a plea in mitigation was made on his behalf. On 20 August 2001 he was sentenced to a term of imprisonment on all 11 counts, being sentenced as a serious sexual offender on the counts after count 2. The total effective sentence was of six years’ imprisonment and a non-parole period was fixed of three and a half years. There was pre-sentence detention of 61 days. The applicant makes no complaint now about the sentence; he seeks leave only to appeal against conviction. Initially there were only three grounds of appeal, but another six were added by amendment on 18 February last. Ground 10 was added on 27 February.

Background facts

The offending was briefly described by the trial judge in his sentencing remarks. He said:-

"The first four counts all related to the one incident before Christmas 1999 when it was alleged you went into your daughter’s bedroom and committed four offences. The first one was an indecent act, feeling her breasts; the second one was another indecent act, feeling her vagina; the third one was putting your finger into her vagina, and the fourth one was getting your tongue into her vagina.

The next incident was in November 1999 after the party when the…

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 VST

Details

AGLC: R v VST [2003] VSCA 35
Case: [2003] VSCA 35
Decision Date: 15 April 2003

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v VST involved the defendant, VST, who was charged with multiple instances of sexual abuse of his young daughter. The primary issue in this appeal was the validity of the jury's majority verdict in the trial. The jury had deliberated for a total of six hours and twenty-seven minutes before reaching a majority decision. The defendant argued that the jury's deliberations did not meet the statutory requirement of at least six hours, as per the Juries Act 2000. The court needed to determine whether the jury had deliberated for the requisite period and whether the trial judge had correctly instructed the jury.

The court considered the statutory requirement that jury deliberations should not be shorter than six hours. It noted that the jury deliberated for a total of six hours and twenty-seven minutes, thus exceeding the statutory threshold. The court rejected the defendant's argument that the trial judge should have directed the jury to continue deliberating if they had not met the six-hour requirement. The court also addressed the issue of whether the trial judge should have given a "perseverance direction" if the jury had not reached a verdict within six hours. The court held that there was no obligation for the trial judge to give such a direction in the circumstances of this case.

The court further examined the defence's suggestion that the motive to lie was implied by the defence's argument. It found that the prosecutor's comments did not constitute an error, and there was no inappropriate suggestion made. The court also dismissed the defendant's claim that the trial judge had erred in giving directions on weighing the credibility of the complainant by "categories" or in relation to the delay in reporting. The court held that these directions did not constitute error. Finally, the court noted that the complainant's right to seek exemption from giving evidence was not canvassed at trial, but found that this did not amount to an error. The appeal was dismissed.

The final orders of the court were that the appeal against conviction and sentence was dismissed. The conviction and sentence imposed by the County Court at Melbourne on 3 September 2021 were affirmed.

Orders