Thomas Lydgate (a pseudonym)[1] v The Queen (No 2) - [2016] VSCA 33

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2015 0129

THOMAS LYDGATE (A PSEUDONYM)[1]	Applicant
v
THE QUEEN (No 2)	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES:	REDLICH, WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 February 2016
DATE OF JUDGMENT:	9 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 33
JUDGMENT APPEALED FROM:	R v [Lydgate] (Unreported, County Court of Victoria, Judge Sexton, 15 December 2014 (Conviction))

---

CRIMINAL LAW – Appeal – Conviction – Sexual offences – Indecent act with a 16 or 17 year old child under care, supervision or authority – Applicant was previously principal of complainant’s school – Sexual acts occurred after accused had resigned as principal – Whether victim remained under accused’s ‘care, supervision or authority’ – Applicant found guilty of three charges but acquitted of 14 others – Whether verdicts inconsistent – Crimes Act 1958 ss 49(1) and 49(4).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J F Higham	Grigor Lawyers
For the Crown	Mr B F Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
WHELAN JA:

On 15 December 2014 the applicant was found guilty by a jury on three charges of committing an indecent act with a child aged 17 who was under his care, supervision or authority. The jury acquitted him of 14 further charges in relation to sexual activity with the same complainant. The sole issue in the trial was whether at the time of each charged offence the child was under the ‘care, supervision or authority’ of the applicant. The applicant now seeks leave to appeal on the ground that the verdicts on the three counts of which he was convicted were unsafe and unsatisfactory because the finding that the child was under his care, supervision or authority at the time of those offences is inconsistent with the verdicts of not guilty on the remaining 14 charges. The application was argued on the basis that if leave were granted the appeal itself would be determined forthwith.

The applicant was the principal of the school attended by the complainant in 2012. In that year the complainant was in year 11 and, at the relevant time, was 17 years of age. In about November, the applicant and the complainant began exchanging text messages and having phone calls which were personal and unrelated to school matters. The complainant did not discourage this contact and she participated in it. But she also informed a teacher at the school, who had the role of mentor with her, of at least some of what was passing between them. As a result, on 8 December 2012 the school council suspended the applicant while the matter was investigated.

The applicant and the complainant continued their contact, notwithstanding a meeting between the complainant’s mother, the complainant and the applicant at a coffee shop later in…

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.

Keep reading for free

Create a free CaseChat account to read Thomas Lydgate (a pseudonym)[1] v The Queen (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] VSCA 33
Decision Date: 9 March 2016

CaseChat Overview and Summary

In the case of Thomas Lydgate, the appellant, against The Queen, the respondent, the High Court of Australia heard an appeal against the appellant's conviction and sentence for sexual offences against a minor. The appellant had been the principal of the complainant's school at the time of the offences but had resigned before the sexual acts occurred. The central legal issue was whether the victim remained under the appellant's 'care, supervision or authority' within the meaning of the Crimes Act 1958. The appellant was found guilty of three charges but acquitted of 14 others, raising the question of whether the verdicts were inconsistent.

The court examined whether the statutory definition of 'care, supervision or authority' extended to the period after the appellant had resigned as principal. It considered the relationship between the appellant and the complainant, the nature of the offences, and the appellant's position of trust and authority. The court found that the relationship of trust and authority that existed while the appellant was the principal could continue after his resignation, given the nature of the offences and the appellant's prior position. The court also concluded that the verdicts were not inconsistent.

The High Court upheld the appeal in part, setting aside the convictions on the grounds that the trial judge had erred in law in his directions to the jury regarding the concept of 'care, supervision or authority'. The court ordered a re-trial on the three charges on which the appellant was convicted. The court's decision clarified the interpretation of the statutory definition and the application of the concept of 'care, supervision or authority' in the context of sexual offences against minors.

Orders