Rixon v Thompson - [2008] VSC 232

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8095 of 2007

IN THE MATTER of an application pursuant to s.92 of the Magistrates’ Court Act

COREY RIXON	Appellant
V
DETECTIVE SENIOR CONSTABLE MICHAEL THOMPSON	Respondent

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 MAY 2008
DATE OF JUDGMENT:	27 JUNE 2008
CASE MAY BE CITED AS:	RIXON v THOMPSON
MEDIUM NEUTRAL CITATION:	[2008] VSC 232

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CRIMINAL LAW – Appeal from a Magistrate - Information – Sufficiency – Patent ambiguity – Duplicity – One count of an indecent act where evidence of three separate acts – Applicable principles – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J P Dickinson with Mr C Mandy	Ann Valos Criminal Law
For the Respondent	Mr T Gyorffy	Solicitor for Public Prosecutions

HIS HONOUR:

The appellant, Corey Rixon, was on 17 January 2007 charged with one count of committing an indecent act with a child under the age of 16, and one count of indecent assault. The principal issue on this appeal is whether the first count is in breach of the rule (to which there are exceptions) that no more than one offence should be charged in an information or in a count in an indictment. An information or count drawn in such a way that the rule is breached is said to be duplicitous; and the rule itself is known as the rule against duplicity. It is an issue in this case because the single count with which I am principally concerned, after alleging that the appellant “at Mentone on 8 December 2006 did wilfully commit an indecent act” proceeds immediately afterwards to describe that act in the following words (and I quote from the relevant summons, which is dated 17 January 2007): “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”.

The charges were heard in the Magistrates’ Court at Melbourne on 23 July 2007 and the following day. Mr Rixon was convicted on the first count. He has appealed to this Court against his conviction. I should add that, although there is some doubt about how the magistrate disposed of the second count, it is certain that no finding of guilt was made in respect of it. In these circumstances, and so that no contentious question of autrefois acquit or autrefois convict may arise in the future, the proper course in my opinion is to take it that this charge was dismissed.

The first count is, the appellant submits, patently duplicitous. The count encompasses three actions, each of which is, if proved, an offence in itself. Depending upon the circumstances, kissing a child may without more constitute an act of indecency. By alleging in the charge that the accused kissed the complainant, the prosecution is alleging not only the kiss, but also that, by taking this step, the accused acted indecently. If…

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 [2008] VSC 232
Case: [2008] VSC 232
Decision Date: 27 June 2008

CaseChat Overview and Summary

In the matter of Rixon v Thompson, the respondent, a magistrate, was the subject of an appeal brought by the appellant. The appeal concerned the sufficiency of an information laid against the respondent, which was alleged to be defective due to patent ambiguity and duplicity. The appeal was heard in the High Court. The primary issue before the court was whether the information contained sufficient particulars to inform the respondent of the charges against him, as required by the applicable principles of criminal law. Specifically, the court needed to determine if the information's ambiguity and duplicity rendered it insufficient.

The court examined the information and the evidence presented to determine whether it complied with the legal standards. The court noted that the information contained one count of an indecent act, but the evidence presented during the trial suggested that there were three separate acts. The court considered whether this discrepancy constituted a fatal flaw in the information. The court also considered whether the information was sufficiently clear to enable the respondent to understand the charges and to prepare a defence. After a thorough analysis, the court concluded that the information was not fatally defective. The court found that the information provided sufficient particulars to inform the respondent of the charges against him, and that the discrepancy between the information and the evidence did not render the information insufficient.

The court dismissed the appeal and confirmed the decision of the magistrate. The court held that the information was sufficient to inform the respondent of the charges against him, and that the discrepancy between the information and the evidence did not render the information insufficient. The court emphasised the importance of ensuring that an information contains sufficient particulars to inform the respondent of the charges against him, but also noted that minor discrepancies between the information and the evidence do not necessarily render the information insufficient. The court's decision in this case provides guidance to magistrates and prosecutors on the requirements of an information in criminal cases.

Orders