Sturt (a pseudonym) v The King - [2024] VSCA 102

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0237

AARON STURT (A PSEUDONYM)[1]	Appellant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of the victim of alleged sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the appellant’s name.

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JUDGES:	MACAULAY, KAYE, T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 April 2024
DATE OF JUDGMENT:	20 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 102
JUDGMENT APPEALED FROM:	DPP v [Sturt] (Unreported, County Court of Victoria, Judge Quin, 17 November 2023)

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CRIMINAL LAW – Appeal – Conviction – Two counts rape, one count sexual assault – Evidence of implied admission by accused – Judge did not direct jury regarding treatment of evidence of implied admission – Whether error in failure to give jury direction – Whether substantial miscarriage of justice – Failure to give mandatory direction constituted error, occasioning substantial miscarriage of justice – Respondent concedes substantial miscarriage of justice – Leave to appeal granted – Appeal allowed – Convictions set aside – Retrial ordered – Jury Directions Act 2015, ss 12, 14, 16, 18, 20–23; Criminal Procedure Act 2009, s 276(1)(b); Evidence Act 2008, ss 97, 101.

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Counsel
Appellant:		Mr C Mylonas
Respondent:		Ms S Lenthall
Solicitors
Appellant:	Robyn Greensill & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA
KAYE JA
T FORREST JA:

In November 2006, the appellant, then 36 years old, married the complainant, then 38 years old, having first met the previous June. After moving to a rural property in January 2010 and living there with their two children and children from the complainant’s previous marriage, they separated in August 2015. Due to incidents occurring soon after their separation, the appellant was convicted of two counts of raping the complainant and one of sexual assault. He has sought leave to appeal those convictions.[2]
[2]Criminal Procedure Act 2009, s 274.

Prosecution case

Between August 2015 and Easter 2016, the appellant attended on a number of occasions at the property where he had lived with the complainant, often to perform work on or related to his semi-trailer vehicle which he used in his business. In November 2015, the appellant was at the property building a ramp. He asked the complainant to assist by holding something. Shortly afterwards, he dragged the complainant to an old chook shed, and began to forcibly pull down her jeans (charge 3, sexual assault[3]). While the appellant was in the process of undoing his own pants, the complainant managed to get away and run back to the house.
[3]Crimes Act 1958, s 40(1).
On an occasion in December 2015, while at the property welding something, the appellant forcibly pulled the complainant into a steel garage and bent her over a quad bike. She tried to fight him off. The appellant pulled down the complainant’s pants, and his own, and then introduced his penis into…

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 Sturt (a pseudonym) v The King

Details

AGLC: Sturt (a pseudonym) v The King [2024] VSCA 102
Case: [2024] VSCA 102
Decision Date: 20 May 2024

CaseChat Overview and Summary

The appellant, Sturt, appealed against his conviction for two counts of rape and one count of sexual assault. The High Court of Australia heard the appeal, with the appeal focusing on the trial judge's failure to direct the jury on the treatment of evidence of an implied admission by the accused. The issue before the court was whether the trial judge's omission to give a direction regarding the implied admission evidence constituted an error that resulted in a substantial miscarriage of justice. The court examined the relevant statutory provisions, particularly sections 12, 14, 16, 18, and 20–23 of the Jury Directions Act 2015, section 276(1)(b) of the Criminal Procedure Act 2009, and sections 97 and 101 of the Evidence Act 2008.

The High Court found that the failure to provide the mandatory direction to the jury regarding the treatment of evidence of an implied admission was indeed an error. This error led to a substantial miscarriage of justice, as the direction was crucial for the jury to properly assess the significance of the implied admission evidence. The respondent conceded that the error resulted in a substantial miscarriage of justice. Consequently, the court granted leave to appeal, allowed the appeal, set aside the convictions, and ordered a retrial. The court's decision underscored the importance of ensuring that juries are correctly directed on the treatment of specific types of evidence to safeguard the fairness of criminal trials.

Orders