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Weston (a pseudonym) v The Queen

Weston (a pseudonym) v The Queen

Case [2015] VSCA 354 17 December 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0062

BURT NORWOOD WESTON (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[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 a pseudonym in place of the name of the applicant.

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JUDGES:	REDLICH, WHELAN and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2015
DATE OF JUDGMENT:	17 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 354
JUDGMENT APPEALED FROM:	DPP v [Weston] (Unreported, Victorian County Court, Judge Meredith, 6 June 2014)

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CRIMINAL LAW – Conviction – Appeal – Indecent act with a child under 16 – Sexual penetration of a child under 16 – Reliability of complainants – Whether convictions unsafe and unsatisfactory – Age of complainants relevant to jury assessment of reliability – Conviction reasonably open to jury – Application for leave to appeal refuse.

CRIMINAL PROCEDURE – Change of Plea – Whether judge erred in not accepting change to plea of guilty prior to sentencing – Test to be applied in change of plea applications is whether there would be a miscarriage of justice, R v Middap (1989) 43 A Crim R 362, applied – Whether ‘genuine consciousness of guilt’ separate question under test, Maxwell v The Queen (1996) 184 CLR 501, Meissner v The Queen (1995) 184 CLR 132, Kumar v The Queen [2014] VSCA 102, considered – No issue as to applicant’s belief of guilt raised – Whether proof of belief in guilt required – Review of authorities on change of plea – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich	Emma Turnbull Lawyers
For the Crown	Mr B L Sonnet	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA:

Overview

The applicant seeks leave to appeal against his conviction and sentence on two separate indictments. Following a trial in relation to the first indictment,[2] the applicant was found guilty by a jury on 22 November 2013 on one charge of indecent act with a child under 16 (charge 1), and one charge of sexual penetration of a child under 16 (charge 4). These charges related to offending against different complainants, JW (aged between 11 and 13 years at the time of the offending)[3] was the complainant on the charge of indecent assault and DC (aged between 3 and 5 years at the time of the offending)[4] was the complainant on the charge of sexual penetration. The applicant was found not guilty on two other charges in relation to JW. The applicant seeks leave to appeal against his convictions on the ground that the verdicts on charges 1 and 4 are unreasonable or cannot be supported having regard to the evidence (ground 1).
[2]Indictment D10417360.1.2 (‘first indictment’).
[3]The pseudonym ‘JW’ was given to the complainant at Trial, and has been adopted by this Court.
[4]The pseudonym ‘DC’ was given to the complainant at Trial, and has…

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 Weston (a pseudonym) v The Queen

Details

AGLC: Weston (a pseudonym) v The Queen [2015] VSCA 354
Case: [2015] VSCA 354
Decision Date: 17 December 2015

CaseChat Overview and Summary

The appellant, identified as Weston, appealed against his conviction and sentence following his conviction for the sexual penetration of a child under 16. The appeal was heard by the court of appeal. Weston contested the reliability of the complainants, arguing that the jury should have considered the age of the complainants when assessing their reliability. He also claimed that the trial judge erred in not accepting his change of plea to guilty prior to sentencing.

The court considered whether the convictions were unsafe and unsatisfactory, focusing on the reliability of the complainants and the age of the complainants as a factor for the jury to assess. The court held that the convictions were reasonably open to the jury based on the evidence presented, and that the age of the complainants was not a determinative factor in assessing reliability. Regarding the change of plea, the court applied the test from R v Middap, concluding that there was no miscarriage of justice in not accepting the change of plea as there was no issue as to the appellant’s belief of guilt.

The court of appeal dismissed the appeal. It found that the convictions were reasonably open to the jury on the evidence and that the trial judge did not err in not accepting the change of plea to guilty. The court further held that the age of the complainants was not a factor that should have been determinative in the jury's assessment of reliability. The appeal was thus dismissed, and the convictions and sentences upheld.

Orders