REE v R - [2010] VSCA 124

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0914

REE
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, NETTLE JA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 May 2010
DATE OF JUDGMENT:	11 May 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 124

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CRIMINAL LAW – Appeal – Conviction – Maintain sexual relationship with a child under 16 – Requirement that Crown identify three separate occasions on which sexual offence committed – Lack of specificity in evidence – Whether third occasion capable of being established by generalised evidence of multiple occasions – Whether trial judge gave appropriate direction to jury regarding how three occasions must be established – Role of prosecution considered – Appeal allowed – Retrial ordered – R v SLJ [2010] VSCA 16 applied – Crimes Act 1958 (Vic) s 47A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J E McLoughlin	Victoria Legal Aid
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

The applicant was presented on one count of maintaining a sexual relationship with a child under 16, contrary to s 47A of the Crimes Act1958 (Vic).[1] He was also presented on one count of committing an indecent act in the presence of a child under 16 and one count of assault, both counts also involving the same complainant. He was convicted on all three counts. On 14 November 2008 the applicant was sentenced to a total effective sentence of two years and nine months, with a non-parole period of one year and nine months. As at the date of the hearing of this application, he has therefore served approximately 18 months of the 21 month minimum term of imprisonment.
[1]The offence under s 47A is now known as ‘persistent sexual abuse of a child under 16’.

This is an application for leave to appeal against the conviction. I shall deal only with ground 1 of the appeal. In my opinion, for the reasons which follow, ground 1 should be upheld. For the reasons to be given by Nettle JA, I consider that grounds 2 and 3 should also be upheld.

It follows that the application for leave to appeal should be granted, the appeal allowed, the convictions set aside and a retrial directed.

Ground 1: jury directions on the s 47A charge

Ground 1 of the appeal is as follows:

The Learned Trial Judge erred in holding that it was not necessary for the complainant to particularise the three separate incidents that formed the basis of Count 1, Maintaining a Sexual Relationship with a Child Under 16.

The ground thus concerns the necessity to identify three separate occasions on which a relevant act was committed, for the purposes of proving the s 47A offence.

Before explaining briefly why this ground must be upheld, I wish to take the opportunity – for the assistance of County Court judges – to draw attention to the salutary difference which the newly introduced system of interlocutory…

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 REE v R

Details

AGLC: R E E v the Queen [2010] VSCA 124
Case: [2010] VSCA 124
Decision Date: 11 May 2010

CaseChat Overview and Summary

The appellant, REE, appealed against his conviction for maintaining a sexual relationship with a child under the age of 16. The case was heard by the Victorian Court of Appeal. The respondent, R, was the Crown, and the case involved a complex assessment of the evidence and legal principles surrounding the statutory offence. The central issue before the court was whether the prosecution had successfully identified three separate occasions on which the sexual offence was committed, as required by section 47A of the Crimes Act 1958 (Vic). The court also had to determine if the trial judge provided the jury with the appropriate direction regarding how these occasions must be established. Furthermore, the role of the prosecution in this context was examined.

The court examined the evidence presented and concluded that the prosecution had not clearly identified three distinct occasions of the sexual offence. The evidence provided was generalised and did not sufficiently pinpoint three separate occasions. The court found that the trial judge did not adequately direct the jury on how the three occasions must be established, which led to an improper conviction. The court held that the prosecution's role in ensuring the identification of three specific occasions is critical, and any ambiguity in this regard could result in an unsafe conviction. The appeal was allowed, and a retrial was ordered, applying the principles set out in R v SLJ [2010] VSCA 16.

The court's reasoning was based on the need for clear and specific evidence to meet the statutory requirements. The lack of specificity in the evidence and the inadequate direction to the jury meant that the conviction could not be maintained. The decision highlights the importance of the prosecution providing precise evidence to satisfy the legal criteria for conviction in such cases. The court's decision was consistent with the need to uphold the integrity of the criminal justice system and ensure that convictions are based on clear and sufficient evidence.

Orders