S C v The Queen - [2012] VSCA 286

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0175 S APCR 2011 0176
SC	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and REDLICH JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	28 May 2012
DATE OF JUDGMENT/ORDER:	6 December 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 286
JUDGMENT APPEALED FROM:	Unreported, County Court of Victoria at Melbourne, Judge Montgomery, Date of Sentence 19 August 2010

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CRIMINAL LAW – Sexual offences – Fresh evidence – Availability at trial of the evidence – No likelihood that the evidence, if accepted, would have caused the jury to acquit the accused – Verdict is not inconsistent – Verdict is not safe or unsatisfactory.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T F Danos	Doogue & O’Brien
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions (Ms B Barby)

BUCHANAN JA:

In 1979 the appellant was in the second year of study to become a Salvation Army officer. He lived at the Salvation Army Training College in Parkville. A husband and wife and their two daughters, S and J, aged eight years and 11 years respectively, also lived at the College.

The appellant was charged with a number of sexual offences against S and J. It was ordered that the counts concerning each complainant be tried separately.

At the conclusion of the trial of the counts relating to S, the appellant was convicted on ten counts of indecent assault. At the conclusion of the trial of the counts relating to J, the appellant was convicted on six counts of indecent assault and three counts of gross indecency with a child under 16.

The appellant has been granted leave to appeal against the convictions. In the appeal arising from the trial of the offences against S the grounds are as follows:

1.The fresh evidence of the affidavits of Myron Cochrane and the appellant provide an alibi for the appellant for the first six counts of the presentment.
2.The verdict of not guilty to count 10 is inconsistent with the guilty verdicts on counts 7 and 9.
3.The verdict is, in all the circumstances, unsafe and unsatisfactory.

In the appeal arising from the offences against J, the same grounds are advanced save that no complaint is made that there were inconsistent verdicts.
Evidence in the first trial

In the first trial the principal Crown witness was the complainant S.

She said that her family lived on the 8th floor of the College. The family arrived at the College on 13 March 1979 and were met by the appellant, who showed them to their quarters.

That night the complainant had dinner at 5 pm with her family. The dinner lasted approximately an hour. The complainant and her family returned to their rooms after dinner. The complainant put on her nightdress and went into the lounge room to watch television with her sister, J. The complainant’s parents left for a meeting.

While the sisters were watching television, there…

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 S C v The Queen

Details

AGLC: S C v The Queen [2012] VSCA 286
Case: [2012] VSCA 286
Decision Date: 6 December 2012

CaseChat Overview and Summary

The case of S C v The Queen involved a defendant appealing against a conviction for sexual offences. The appeal centred around the contention that fresh evidence was available at the time of the trial but was not presented, which the appellant claimed could have led to an acquittal. The appeal was heard in the High Court of Australia.

The legal issues before the court included whether the availability of fresh evidence that was not presented at trial could form the basis of an appeal against conviction. Additionally, the court had to consider whether the unpresented evidence, if accepted, would have caused the jury to acquit the appellant, and whether the verdict was safe and satisfactory. The appellant argued that the fresh evidence would have led to a different outcome, while the respondent contended that the verdict was sound and there was no reasonable possibility that the fresh evidence would have altered the jury’s decision.

The court examined the evidence and concluded that the fresh evidence, if accepted, did not have a significant likelihood of causing the jury to acquit the appellant. The court found that the verdict was not inconsistent with the fresh evidence and that it remained safe and satisfactory. The reasoning relied on the principle that an appeal on the basis of fresh evidence is only valid if there is a reasonable possibility that the outcome would have been different. In this case, the court determined that the fresh evidence did not meet this threshold.

The High Court dismissed the appeal, affirming the conviction. The court held that the fresh evidence, even if accepted, would not have reasonably led to an acquittal and that the verdict remained safe and satisfactory. The decision underscores the stringent requirements for an appeal based on fresh evidence and reaffirms the importance of the jury’s role in assessing the credibility and weight of the evidence presented at trial.

Orders