S J F v The Queen - [2011] VSCA 281

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0293

SJF
	v
THE QUEEN

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JUDGES:	WARREN CJ, BUCHANAN JA, SIFRIS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 July 2011
DATE OF JUDGMENT:	20 September 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 281
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v SJF (Unreported, County Court of Victoria, Judge Hampel, 25 August 2008)

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CRIMINAL LAW – Committing indecent act with child under age of 16 years – Complainants two sisters aged under ten years – Applicant family friend of complainants’ mother – Offending alleged over three year period – Applicant acquitted of two counts of maintaining a sexual relationship with child under age of 16 – Convicted of committing indecent act with a child under age of 16 years as alternative count – Sufficient basis for jury’s verdict – No error in failing to direct separate trials in respect of each complainant.

CRIMINAL LAW – Uncharged sexual acts – Direction to jury – Correctness of R v Sadler (2008) 20 VR 69 considered – R v Sadler properly decided – Misdirection by trial judge as to standard of proof applicable to uncharged acts used to support inference of guilt – Trial miscarried.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr N Papas SC with Ms E Ruddle	Access Law
For the Respondent	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

I have had the benefit of reading the judgment of Buchanan JA in draft and I agree with his Honour’s reasons and proposed disposition of the appeal.

BUCHANAN JA:

The applicant was arraigned in the County Court and pleaded not guilty to a presentment containing two counts of maintaining a sexual relationship with a child under the age of 16 years. The first count related to TJ and the second count to her sister, AJ. At the conclusion of the trial, the jury were unable to agree in respect of count 1, the jury acquitted the applicant on count 2 and on a number of alternative counts to count 2 but found the applicant guilty of another alternative to count 2, namely, committing an indecent act with a child under the age of 16 years.

A plea was conducted and the applicant was sentenced to be imprisoned for a term of 18 months. The sentence was suspended for a period of 18 months.

The applicant seeks leave to appeal against the conviction.

The principal Crown witnesses were AJ and TJ. In the period covered by the presentment, AJ was aged between three and six years and TJ was three years’ older. The complainants had known the applicant all their lives. He was a family friend of their mother. The applicant babysat the complainants on numerous occasions and sometimes they slept over at his house. The applicant was aged between 57 and 60 years during the period covered by the presentment.

The complainants gave their evidence by means of VATE…

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 J F v The Queen

Details

AGLC: S J F v The Queen [2011] VSCA 281
Case: [2011] VSCA 281
Decision Date: 20 September 2011

CaseChat Overview and Summary

The case of S J F v The Queen involves the applicant, who was charged with various offences relating to sexual acts committed against two sisters under the age of ten. The applicant was a family friend of the girls’ mother and the offending was alleged to have occurred over a period of three years. The applicant was acquitted of two counts of maintaining a sexual relationship with a child under the age of 16, but was convicted of committing an indecent act with a child under the age of 16 years as an alternative count. The applicant appealed against the conviction, arguing that the trial judge erred in several respects, including in failing to direct separate trials in respect of each complainant and in the direction given to the jury in relation to uncharged sexual acts.

The court considered whether the trial judge erred in failing to direct separate trials for each complainant. The court found that there was no error in the trial judge’s decision not to direct separate trials, as the evidence of each complainant was not mutually exclusive and the jury could have reasonably concluded that the applicant had committed the offence against both complainants. The court also considered the trial judge’s direction to the jury in relation to uncharged sexual acts. The applicant argued that the trial judge misdirected the jury as to the standard of proof applicable to uncharged acts used to support an inference of guilt. The court found that the trial judge’s direction was consistent with the decision in R v Sadler and that there was no misdirection by the trial judge.

The court concluded that the trial was not miscarried and that the jury’s verdict was based on sufficient evidence. However, the court found that there was a misdirection by the trial judge in relation to the standard of proof applicable to uncharged acts used to support an inference of guilt. The court held that this error was not harmless and that the trial miscarried as a result. The conviction was quashed and the matter was remitted to the Court of Appeal for further consideration. The court did not make any orders in relation to the acquittal of the applicant on the two counts of maintaining a sexual relationship with a child under the age of 16.

Orders