[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the persons mentioned herein.

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JUDGES:	MAXWELL P and REDLICH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 March 2015
DATE OF JUDGMENT:	17 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 251	1^st Revision 22 September 2015 — Catchwords
JUDGMENT APPEALED FROM:	DPP v [Sutton] (Unreported, County Court of Victoria, Judge Patrick, 27 May 2014)

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CRIMINAL LAW – Appeal – Conviction – Incest – Applicant in relationship with victims’ mother – Relationship resumed after separation – Whether applicant was ‘de facto spouse’ – Whether ‘living together as if they were married’ – Relevance of parental relationship between applicant and victims – Whether jury directions adequate – Whether verdicts unsafe – Appeal dismissed – Jury Directions Act 2013 ss 8, 10, 11, 15.

EVIDENCE – Uncharged acts – Sexual interest in complainant – Gentry v The Queen [2014] VSCA 211 applied – Whether evidence should have been excluded as unreliable – Whether VARE contained leading questions.

CRIMINAL LAW – Procedure – Amendment of the indictment – Criminal Procedure Act 2009 s 165(1) – Stay ordered of previous indictment – Stay order withdrawn – Criminal Procedure Act 2009 s 412 – Whether court functus officio – Filing over of a new indictment – Criminal Procedure Act s 164(4) – R v Reid (2010) 29 VR 446 followed.

CRIMINAL LAW – Appeal – Conviction – Incest – No case submission – Directed acquittals on certain charges – Crown application for discharge of jury – Application opposed by defence – Application refused – Whether trial on remaining charges prejudiced by evidence relevant only to acquittals – Rational forensic decision of defence counsel not to seek discharge – No miscarriage of justice – Dragojlovic v The Queen (2013) 40 VR 71 applied.

WORDS AND PHRASES – ‘De facto spouse’ – ‘living together as if they were married’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr M FitzGerald	Dr Martine Marich & Associates
For the Crown	Mr P B Kidd SC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA:

Summary

The defining feature of the crime of incest is the existence of a family relationship between the offender and the victim. The relevant relationships fall into two categories: kinship relationships and parental relationships. In the first category, the victim is the blood relation of the offender; in the second, the offender is in a parental relationship with the victim. Obviously, there is some overlap between the categories.

In Victoria, until 1991, the second category of incest was limited to cases where the victim was the offender’s child or grandchild (‘lineal descendant’) or the offender’s step-child. In the case of a lineal descendant, the relationship is both a kinship…

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 Sutton (a pseudonym) v The Queen

Details

AGLC: Sutton (a pseudonym) v The Queen [2015] VSCA 251
Case: [2015] VSCA 251
Decision Date: 17 September 2015

CaseChat Overview and Summary

Sutton appealed against his conviction for multiple counts of incest. The relationship in question involved the applicant and the mother of the victims, which resumed after a period of separation. The appeal raised several issues, including whether the applicant was a de facto spouse, whether the relationship was akin to living together as if they were married, and the relevance of the parental relationship between the applicant and the victims. The appeal also contested the adequacy of the jury directions and the safety of the verdicts.

The court examined whether the jury directions were adequate under the Jury Directions Act 2013 and whether the verdicts were unsafe and unreasonable. It also assessed the reliability of evidence pertaining to the applicant's sexual interest in the complainant and considered whether the uncharged acts evidence should have been excluded. The court applied the principles from Gentry v The Queen and evaluated whether the Victoria Adult Rape Evidence (VARE) contained leading questions. The court found the jury directions to be adequate and the verdicts safe, dismissing the appeal.

In addressing the procedural aspects, the court considered whether the court was functus officio after staying the previous indictment and whether a new indictment could be filed under the Criminal Procedure Act 2009. The court followed the decision in R v Reid and determined that the court was not functus officio and that the new indictment was properly filed. The court also reviewed the no case submissions and directed acquittals on certain charges, considering whether the trial on the remaining charges was prejudiced by evidence relevant only to the acquitted charges.

The court found that the decision of the defence counsel not to seek a discharge of the jury was a rational forensic decision and did not result in a miscarriage of justice. It applied the principles from Dragojlovic v The Queen in concluding that there was no miscarriage of justice. The court also defined the terms ‘de facto spouse’ and ‘living together as if they were married’ in the context of the relationship between the applicant and the victims’ mother.

Orders