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Rixon v Thompson

Rixon v Thompson

Case [2009] VSCA 84 1 May 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3824 of 2008

COREY RIXON
	v
DETECTIVE SENIOR CONSTABLE MICHAEL THOMPSON

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JUDGES:	MAXWELL P, WEINBERG JA and KYROU AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 April 2009
DATE OF JUDGMENT:	1 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 84

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CRIMINAL LAW – Conviction – Indecent act with child – Single charge alleged appellant ‘kissed, fondled and allowed the child to feel his erect penis’ – Whether charge bad for duplicity – Whether charge encompassed single criminal activity or series of separate offences – Question of fact and degree - Review of Magistrates’ Court decision not to require election does not involve challenge to exercise of discretion – Rule against duplicity as strict in Magistrates’ Court as elsewhere – Issue of duplicity not to be approached solely on basis of whether defendant treated unfairly, other considerations involved – Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J J Lavery	Ann Valos Criminal Law
For the Respondent	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P

WEINBERG JA
KYROU AJA:

This is an appeal, pursuant to leave, from a decision by a judge of the Trial Division dismissing an appeal under s 92 of the Magistrates’ Court Act 1989. The appellant, Corey Rixon, pleaded not guilty to one count of committing an indecent act with a child under the age of 16 (charge 1)[1] and also, in the alternative, to one count of indecent assault (charge 2).[2] On 23 July 2007, the charges were heard summarily.
[1]Crimes Act 1958, s 47.
[2]Crimes Act 1958, s 39.

Charge 1 was in the following terms:

The defendant at Mentone on 8th December, 2006, did wilfully commit an indecent act namely kiss, fondle, and allow the child to feel his erect penis with a child under the age of 16 to whom he was not married.

On 24 July 2007, the appellant was found guilty of that charge. He was sentenced to a term of six months’ imprisonment. Three months of that term were suspended for a period of 12 months. He was granted bail pending appeal.

No verdict was taken on charge 2. For present purposes, that charge should be regarded as having been dismissed.

The appellant could, of course, have appealed to the County Court pursuant to s 83 of the Magistrates’ Court Act. Any such appeal would have been by hearing de novo. However, he elected instead to appeal to the Supreme Court on a question of law. He contended that the charge upon which he was convicted was bad for duplicity.

On 27 June 2008, that appeal was dismissed. The appellant now contends that the judge below erred in rejecting his contention as to duplicity.

Facts of the case

In the course of his evidence, the 13-year-old complainant told how, during the afternoon of 8 December 2006, he had had an argument with his mother. As a result, he…

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 Rixon v Thompson

Details

AGLC: Rixon v Thompson [2009] VSCA 84
Case: [2009] VSCA 84
Decision Date: 1 May 2009

CaseChat Overview and Summary

The matter of Rixon v Thompson arose from an appeal against a conviction in the Magistrates’ Court of Queensland, where the appellant was found guilty of committing an indecent act with a child under the age of 16. The specific charge alleged that the appellant kissed, fondled, and allowed the child to feel his erect penis. The primary legal issue before the court was whether the charge was bad for duplicity, meaning whether it encompassed a single criminal activity or a series of separate offences. This issue required the court to determine if the charge was sufficiently specific and clear, or if it was so vague or complex that it could be considered multiplicitous.

The court engaged in a detailed analysis of the nature of the charge, considering whether the alleged actions constituted a single criminal act or multiple distinct offences. It was noted that the rule against duplicity is strictly applied in the Magistrates’ Court, just as it is elsewhere, and that the issue of duplicity should not be approached solely on the basis of whether the defendant was treated unfairly. Other considerations, such as the clarity and specificity of the charge, were also relevant. After examining the facts and the legal principles involved, the court found that the charge did not suffer from the vice of duplicity and was sufficiently clear to inform the appellant of the nature of the offence against which he had to defend himself. Consequently, the appeal was dismissed.

The court held that the charge in question was not bad for duplicity and that the alleged actions could be considered a single criminal activity. The reasoning involved a nuanced understanding of the legal principles surrounding duplicity and the specific circumstances of the case. The court determined that the review of the Magistrates’ Court decision not to require an election did not involve a challenge to the exercise of discretion, as the issue was one of law rather than discretion. The court’s decision was based on a comprehensive review of the relevant legal principles and the specific facts of the case. The final outcome was that the appeal was dismissed, affirming the conviction in the Magistrates’ Court.

Orders