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Thrussell (a pseudonym) v The Queen

Thrussell (a pseudonym) v The Queen

Case [2017] VSCA 386 20 December 2017

Admissibility of Evidence

Expert Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0256

ANDRE THRUSSELL (A PSEUDONYM)[1]	Applicant
V
THE QUEEN	Respondent

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

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JUDGES:	MAXWELL P, SANTAMARIA JA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 October 2017
DATE OF JUDGMENT:	20 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 386
JUDGMENT APPEALED FROM:	DPP v [Thrussell] (Unreported, County Court of Victoria, Judge Gaynor, 21 September 2016 (Conviction); 24 November 2016 (Sentence))

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CRIMINAL LAW – Appeal – Conviction – Incest – Applicant convicted on one charge of incest – Acquittals on four other charges involving same complainant – Whether conviction unsafe – Credibility of complainant – Whether complainant had motive to lie – Whether verdicts inconsistent – Appeal dismissed.

EVIDENCE – Tendency evidence – Charged and uncharged acts – Whether evidence of uncharged acts probative of alleged tendency – Whether probative value substantially outweighed prejudicial effect – Evidence properly admitted – Evidence Act 2008 ss 97(1), 101(2).

CRIMINAL LAW – Appeal – Sentence – Incest – Sentence of 6 years’ imprisonment with non-parole period of 4 years – Finding as to factual context – Whether reasonably open – Delay – Applicable sentencing practices – Whether sentence manifestly excessive – Plea of not guilty – Violence – Breach of trust – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr H A Rattray	Stary Norton Halphen
For the Respondent	Mr B F Kissane QC with Mr P J Doyle	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
SANTAMARIA JA
BEALE AJA:

Introduction

The applicant was tried on six charges of incest, one charge of intentionally causing injury, one charge of common law assault and one charge of an indecent act with a child under 16. The complainants were Sandra Thrussell and Vivian Thrussell, both daughters of the applicant. The applicant pleaded not guilty to all charges.

Following a six-day trial, the applicant was found guilty by unanimous jury verdict on the first charge of incest, which related to a particular incident described below. The applicant was acquitted on all remaining charges. He was sentenced to six years’ imprisonment with a non-parole period of four years.[2]
[2]There was also a declaration of 595 days of pre-sentence detention, a forensic sample order pursuant to s 464ZF of the Crimes Act 1958 and an order that the applicant report for 15 years pursuant to the Sex Offenders Registration Act 2004.

The applicant and his wife, Greta Jarrett, had eight children. The family had moved constantly within and outside Victoria. At various times, when they had housing difficulties, members of the family took up residence in a particular halfway house in Melbourne (‘the halfway house’).

The offending the subject of charge 1 was alleged to have taken place between 7 March 1989 and 6 March 1992,…

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 Thrussell (a pseudonym) v The Queen

Details

AGLC: Thrussell (a pseudonym) v The Queen [2017] VSCA 386
Case: [2017] VSCA 386
Decision Date: 20 December 2017

CaseChat Overview and Summary

The appellant, Thrussell, was convicted of one count of incest and was acquitted on four other charges involving the same complainant. Thrussell appealed the conviction, arguing it was unsafe and unreliable. The complainant had alleged that Thrussell engaged in incestuous conduct on five separate occasions. The jury returned acquittals on four of the counts, which the appellant argued indicated the conviction was unsafe. The appellant also argued that the complainant had a motive to lie and that the verdicts were inconsistent. The High Court examined the credibility of the complainant, the consistency of the verdicts, and whether the probative value of the evidence of uncharged acts substantially outweighed the prejudicial effect.

The court considered whether the evidence of uncharged acts was properly admitted under the Evidence Act 2008. The court found that the probative value of the evidence was not substantially outweighed by the prejudicial effect, and the evidence was properly admitted. The court also found that the conviction was reasonably open on the evidence, and the verdicts were not necessarily inconsistent. The court held that the jury was entitled to accept the complainant's evidence on one occasion and not on others, and the acquittals did not necessarily undermine the conviction.

The court further considered the sentence imposed on the appellant, which was six years' imprisonment with a non-parole period of four years. The court found that the sentence was reasonably open on the evidence and did not constitute a manifestly excessive sentence. The court also considered the applicable sentencing practices and the delay in bringing the case to trial. The court held that the sentence was appropriate in the circumstances and dismissed the appeal.

The High Court dismissed the appeal against both the conviction and the sentence. The court found that the evidence supported the conviction, the sentence was reasonably open, and the appeal was without merit. The decision confirms the importance of considering the credibility of complainants and the consistency of verdicts in cases involving multiple charges. The court also confirmed that evidence of uncharged acts can be properly admitted if its probative value is not substantially outweighed by its prejudicial effect.

Orders