R v Werry - [2009] VSCA 94

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 960 of 2007

THE QUEEN
	v
ALEISHA WERRY

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JUDGES:	REDLICH and KELLAM JJA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 March 2009
DATE OF JUDGMENT:	12 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 94	1^st Revision 14 May 2009

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CRIMINAL LAW – Conviction – Sexual offences – Indecent acts and acts of sexual penetration – Child under 16 years of age – Whether trial judge gave adequate directions as to proof that the applicant had no reasonable grounds to believe the victim was aged under 16 years – Uncharged acts – Whether the trial judge was required to direct that proof of uncharged acts had to be beyond reasonable doubt in circumstances where the evidence was not led to prove a sexual interest or relationship – Application for leave to appeal dismissed.

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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 Brendon Loizou	Macgregor (acting Pro-Bono)

REDLICH JA:

For the reasons given by Kellam JA I agree that the application for leave to appeal against conviction should be refused.

I would make the following additional observation. The decision in R v Sadler[1] does not stand for the broad proposition that uncharged acts should be proved beyond reasonable doubt. It is only authority for the proposition that where the offences charged are of a sexual character and the prosecution seeks to rely on uncharged sexual acts involving the same complainant, those uncharged acts should be proved beyond reasonable doubt unless the trial judge considers there is no real risk of the jury using the evidence to support a conclusion that the accused had a sexual interest in the complainant. Sadler does not otherwise impinge upon existing principles concerning the standard of proof to be applied in relation to circumstantial evidence or alter the approach required to propensity evidence or to evidence which the judge perceives may be used by the jury as an important step in reasoning towards guilt.

[1][2008] VSCA 198, [65].

KELLAM JA:

On 17 November 2007, at the County Court in Melbourne, a jury found the applicant guilty of six counts of sexual penetration of a child under the age of 16 years, nine counts of committing an indecent act with or in the presence of a child under the age of 16 years and one count of making or producing child pornography.

The applicant was sentenced to a total effective sentence of two years and ten months’ imprisonment with a non-parole period of 21 months.

The applicant seeks leave to appeal her conviction. Upon the application coming on for hearing, counsel for the applicant sought leave, which was granted, to abandon an application for leave to appeal against sentence.

The background facts

The victim of the offences committed by the applicant and to whom I shall refer as ‘RK’, was born on 13 January 1992. She…

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 Werry

Details

AGLC: R v Werry [2009] VSCA 94
Case: [2009] VSCA 94
Decision Date: 12 May 2009

CaseChat Overview and Summary

The applicant, Werry, appealed against his conviction for engaging in sexual acts with a child under the age of 16. The case was heard in the Court of Appeal, which was required to determine whether the trial judge gave adequate directions regarding the proof that Werry had no reasonable grounds to believe the victim was under 16, and whether the trial judge should have directed the jury that proof of uncharged acts must be beyond reasonable doubt when the evidence was not intended to prove a sexual interest or relationship.

The primary legal issues were whether the trial judge sufficiently instructed the jury on the standard of proof required to establish that Werry had no reasonable grounds to believe the victim was under 16, and if the trial judge should have directed the jury that any uncharged acts must be proven beyond reasonable doubt when the evidence was not presented to demonstrate a sexual interest or relationship. The applicant argued that the trial judge's directions were inadequate and prejudicial.

The Court of Appeal dismissed the application for leave to appeal. The court found that the trial judge had given adequate directions to the jury concerning the standard of proof required to establish that Werry had no reasonable grounds to believe the victim was under 16. The court also held that the trial judge was not required to direct the jury that proof of uncharged acts must be beyond reasonable doubt in circumstances where the evidence of those acts was not led to prove a sexual interest or relationship. The appeal was dismissed, and the conviction was upheld.

No further orders were made by the Court of Appeal beyond dismissing the application for leave to appeal.

Orders