Wayne Spence (a pseudonym)[1] v The Queen - [2016] VSCA 265

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0047

WAYNE SPENCE (a pseudonym)[1]	Applicant
v
THE QUEEN	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, BEACH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 October 2016
DATE OF JUDGMENT:	11 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 265
JUDGMENT APPEALED FROM:	DPP v Spence (Unreported, County Court of Victoria, Judge Pullen, 26 June 2015)

---

CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of 3 charges of indecent act with child under 16 (his biological daughter), 1 charge of incest and 1 charge of common law assault – Whether inconsistencies and other features of complainant’s evidence rendered verdicts unreasonable or unable to be supported having regard to the evidence – Ground not made out.

CRIMINAL LAW – Application for leave to appeal against conviction – Whether judge erred in admitting into evidence two statements by complainant that she lost her virginity to applicant during one of the charged events – Ground not made out – Application for leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Johns	Theo Magazis & Associates
For the Crown	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
BEACH JA

KYROU JA:

Introduction and summary

On 19 February 2015, the applicant (now aged 39) was convicted by jury of three charges of indecent act with a child under 16 (his biological daughter), one charge of incest and one charge of common law assault. The applicant was acquitted on one charge of incest and the jury was discharged without verdict on two further charges of incest.

Following a plea on 19 June 2015, the applicant was sentenced on 26 June 2015 to a total effective sentence of 4 years and 7 months’ imprisonment with a non-parole period of 2 years and 9 months.

The applicant seeks leave to appeal against the convictions principally on the ground that the verdicts are unreasonable or cannot be supported having regard to the evidence.[2] The applicant also relies on a ground relating to the admissibility of evidence by the complainant that she lost her virginity to the applicant during one of the charged events. A third ground was abandoned prior to the hearing of the application for leave to appeal.
[2]Criminal Procedure Act 2009 s 276(1)(a).

For the reasons that follow, the application for leave to appeal will be refused.

Complainant’s evidence of the circumstances of the offending

In June 1995, the applicant formed a relationship with Christine Banks.[3] Ms Banks had two children at the time, one son and one daughter, who lived with Ms Banks and the applicant in New South Wales. The complainant was born to the applicant and Ms Banks on 28 September 1996. Soon after the complainant was born, her older half-sister moved…

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 Wayne Spence (a pseudonym)[1] v The Queen

Details

AGLC: Wayne Spence (a pseudonym)[1] v The Queen [2016] VSCA 265
Case: [2016] VSCA 265
Decision Date: 11 November 2016

CaseChat Overview and Summary

The applicant, identified as Wayne Spence, applied for leave to appeal against his conviction on five charges, including three counts of indecent act with a child under 16, one count of incest, and one count of common law assault. The charges related to acts committed against his biological daughter. The appeal was heard in the High Court of Australia. The central issue in this case was whether the trial judge erred in admitting certain statements made by the complainant, and whether the evidence presented was sufficient to support the verdicts returned by the jury.

The court examined whether the inconsistencies in the complainant's evidence and other factors rendered the verdicts unreasonable or unable to be supported by the evidence. The court also considered whether the judge had erred in admitting two statements made by the complainant that she lost her virginity to the applicant during one of the charged events. In addressing these issues, the court found that the inconsistencies and other features of the complainant's evidence did not render the verdicts unreasonable or unsupported by the evidence. Additionally, the court determined that the judge did not err in admitting the two statements in question.

Having reviewed the grounds for appeal, the High Court concluded that the applicant had not demonstrated that the appeal had a real chance of succeeding. Consequently, the application for leave to appeal was refused. The court's decision was based on a thorough analysis of the evidence and legal principles applicable to the case.

Orders