Schliefert v The King - [2024] VSCA 197

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0112

EDDIE (STEPHANI) SCHLIEFERT	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2024
DATE OF JUDGMENT:	12 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 197
JUDGMENT APPEALED FROM:	DPP v Schliefert (Unreported, County Court of Victoria, 7 February 2023, Judge Wraight)

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of sexual assault but acquitted of sexual penetration alleged to have occurred immediately prior – Whether verdicts inconsistent – Clear logical and reasonable basis for different verdicts – Leave to appeal refused.

MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606, followed.

The Queen v Ware [1997] 1 VR 647; Crofts v The Queen [2018] VSCA 197; Sladek v The King [2024] VSCA 119, referred to.

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Counsel
Applicant:		Ms A Roodenburg with Ms H Edwards
Respondent:		Mr J Dickie
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA

TAYLOR JA
BOYCE JA:

The applicant faced trial in the County Court on an indictment containing two charges of sexual offending against a child complainant, BK. The offending relevant to both charges was alleged to have occurred in a single episode. The applicant was acquitted of one count of sexual penetration of a child under 16 (charge 1) and convicted of one count of sexual assault of a child under 16 (charge 2).
The applicant now seeks leave to appeal against conviction on the single ground that the guilty verdict on charge 2 is illogical and unreasonable in that it is inconsistent with the not guilty verdict on charge 1.
For the reasons that follow, we would refuse leave to appeal.

Factual background

The applicant[1] was 40 years of age at the time of the offending. He had green hair. The applicant was homeless and living on the streets of Geelong. BK was a 15 year old girl with an intellectual disability. The Department of Health and Human Services was involved in her care. She had a history of running away from home.
[1]For the sake of clarity, this judgment uses male pronouns with respect to the applicant. At a time after the offending the applicant identified as female.
BK and the applicant knew each other slightly from interactions in the Geelong area.
BK was reported to Victoria Police as a missing person on 1 October 2018 after running away from her accommodation. On the evening of that day she and the applicant set up tents at the rear of the Anglican Parish of Christ Church, Geelong. The prosecution case was that the applicant entered BK’s tent where he sexually penetrated her vagina with his fingers (charge 1) and touched her breasts and buttocks (charge 2). At that point BK kicked the applicant in the stomach and fled.
On 2 October 2018 BK was picked up…

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 Schliefert v The King

Details

AGLC: Schliefert v The King [2024] VSCA 197
Case: [2024] VSCA 197
Decision Date: 12 September 2024

CaseChat Overview and Summary

In the matter of Schliefert v The King, the applicant, Schliefert, sought leave to appeal against his conviction for sexual assault. The case was heard in the Victorian Court of Appeal. The applicant had been convicted of sexual assault but acquitted of a charge of sexual penetration that allegedly occurred immediately prior to the assault. The central issue before the court was whether the verdicts were inconsistent, and if not, whether there was a clear logical and reasonable basis for the jury to return different verdicts.

The court considered whether the verdicts of the jury could be reconciled and if the jury had a clear logical and reasonable basis for convicting the applicant of sexual assault but acquitting him of the charge of sexual penetration. The court examined the relevant authorities on the matter, including MacKenzie v The Queen and MFA v The Queen, which were followed in the decision. Additionally, the court referred to The Queen v Ware, Crofts v The Queen, and Sladek v The King for further guidance.

Upon reviewing the evidence and applying the relevant legal principles, the court concluded that the verdicts were not inconsistent and that there was a clear logical and reasonable basis for the jury's decision. The applicant's appeal was dismissed, and leave to appeal was refused. The court held that the jury's verdicts could be justified based on the evidence presented and the reasonable inferences that could be drawn from that evidence. The applicant's conviction for sexual assault stood, and the acquittal on the charge of sexual penetration was upheld.

Orders