Legal Research
Cases
SLJ v The Queen

SLJ v The Queen

Case [2013] VSCA 193 31 July 2013

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0143
S L J	Applicant
v
THE QUEEN	Respondent

---

JUDGES	REDLICH, OSBORN and WHELAN JJA
WHERE HELD	MELBOURNE
DATE OF JUDGMENT	31 July 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 193
JUDGMENT APPEALED FROM	R v SLJ (Unreported, County Court of Victoria, Judge Bourke, 28 May 2012)

---

CRIMINAL LAW – Indecent act with or in the presence of a child under 16 – Applicant showed graphic images on his mobile phone to the complainant – Whether the showing of graphic images was indecent – Indecent act not ‘with’ but ‘in the presence of’ the complainant – Images had a clear sexual connotation – Whether sexual gratification a necessary element – Viewed in context, showing the complainant these images was an indecent act – Crimes Act 1958 ss 39, 47 – R v Coffey (2003) 6 VR 543; R v Alexander & McKenzie (2002) 6 VR 53 considered.

CRIMINAL LAW – Application for leave to appeal against conviction – Sexual penetration of a child under 16 – Unsafe and unsatisfactory verdicts – Whether the complainant’s allegation of digital penetration was elicited as a result of leading police questions – Whether the complainant’s evidence was inconsistent with her allegations to police and the notes she made before the police interview – Allegation of digital penetration made voluntarily – Verdicts not unsafe or unsatisfactory – R v Klamo (2006) 18 VR 644; M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 203 CLR 457 applied – Application for leave to appeal refused.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	James Dowsley & Assoc
For the Respondent	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

After a trial in the County Court, the applicant was convicted of one charge of sexual penetration of a child under 16 and seven charges of an indecent act with or in the presence of a child under 16, and was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1 Indecent act with or in the presence of a child under 16 [Crimes Act 1958 (Vic) s 47] 10 years 12 months 6 months

2 Indecent act with or in the presence of a child under 16 10 years 3 years ---

3 Sexual penetration of a child under 16 [Crimes Act 1958 (Vic) s 45] 10 years 3 years 6 months Base

4 Indecent act with or in the presence of a child under 16 10 years 2 years 10 months

5 Indecent act with or in the presence of a child under 16 10 years 6 months 3 months

6 Indecent act with or in the presence of a child under 16 10 years 9 months 4 months

7 Indecent act with or in the presence of a child under 16 10 years 9 months 4 months

8 Indecent act with or in the presence of…

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 SLJ v The Queen

Details

AGLC: SLJ v The Queen [2013] VSCA 193
Case: [2013] VSCA 193
Decision Date: 31 July 2013

CaseChat Overview and Summary

In SLJ v The Queen, the appellant, SLJ, appealed against his conviction and sentence for indecent acts with or in the presence of a child under 16, as well as for the sexual penetration of a child under 16. The matter was heard in the Court of Appeal of the Supreme Court of Victoria. The key issues before the court were whether the act of showing graphic images to the complainant constituted an indecent act and, if so, whether the act was with or in the presence of the complainant. Additionally, the court needed to determine whether the verdicts were unsafe and unsatisfactory, particularly regarding the allegation of digital penetration.

The court examined whether the showing of graphic images to the complainant constituted an indecent act. It held that, while the images did not involve physical contact, they had a clear sexual connotation and could be considered indecent in context. The court distinguished between an act 'with' and 'in the presence of' a child, finding that the act in question fell within the latter category. The court held that the images had a clear sexual connotation and were shown for the appellant’s sexual gratification, even if it was not the primary intent. It concluded that the act was indecent in the context in which it occurred. The court also found that the complainant’s allegation of digital penetration was voluntary and consistent with her evidence, despite the appellant’s claims of leading police questioning. The verdicts were deemed safe and satisfactory.

The court found that the showing of graphic images to the complainant constituted an indecent act in the presence of the complainant. The court rejected the appellant’s argument that the act was not indecent because it did not involve physical contact. The court emphasised that the act was indecent given the sexual nature of the images and the context in which they were shown. The court also held that the verdicts regarding the sexual penetration of the child were safe and satisfactory, noting the consistency of the complainant’s evidence. Consequently, the application for leave to appeal was refused.

Orders