Russell O'Brien (a pseudonym) v The Queen

[2015] HCASL 20

RUSSELL O'BRIEN (A PSEUDONYM)

v

THE QUEEN

[2015] HCASL 20
M52/2014

1. Following a trial by jury, the applicant was convicted on one count of sexual penetration of a child under the age of 16 years and three counts of indecent act with a child under the age of 16 years in the County Court of Victoria.  He was sentenced to a total effective sentence of four years' imprisonment with a non-parole period of two years.  He sought leave to appeal against both conviction and sentence to the Court of Appeal of the Supreme Court of Victoria (Nettle and Priest JJA).  The Court of Appeal refused the applicant leave to appeal against conviction but allowed his appeal against sentence.  It is from the Court of Appeal's refusal of leave to appeal against conviction that the applicant now seeks special leave to appeal to this Court.

2. The applicant contended in the Court of Appeal, and seeks to contend in this Court, that the returned verdicts are unreasonable and cannot be supported having regard to the evidence.  He argues that the jury could not properly have convicted him without being satisfied beyond reasonable doubt of the truth of the complainant's evidence, which would not have been possible given what he contended were significant defects in her testimony.  These defects included the complainant's recanting of serious allegations in relation to charges in respect of which no verdict was returned, inconsistencies in the complainant's version of events at various times and the inherent improbability of the allegations given the relevant factual circumstances and the applicant's previous good character. 

3. Nettle JA, although noting the defects in the complainant's evidence, did not consider that, upon the whole of the evidence, the jury was bound to have had a reasonable doubt about the applicant's guilt.  There was evidence to support the verdicts.  Priest JA agreed essentially with the reasons advanced by Nettle JA, adding some observations of his own.

4. The carefully considered judgment of the Court of Appeal does not give rise to a question of principle sufficient to warrant a grant of special leave.  Nor are the interests of justice otherwise engaged.  The application is dismissed.

5. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
5 March 2015 S.J. Gageler