| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0116 |
| RYAN WILSON (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To ensure that there is no possibility of identification of the complainant, this judgment has been anonymised by the adoption of pseudonyms.
---
| JUDGES: | PRIEST, NIALL and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 November 2023 |
| DATE OF JUDGMENT: | 16 November 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 276 |
| JUDGMENT APPEALED FROM: | [2022] VCC 745 |
---
CRIMINAL LAW – Appeal – Conviction – Applicant convicted on one charge of rape and two charges of sexual assault – Whether prosecutor failed to comply with rule in Browne v Dunn in cross-examination of applicant – Whether judge erred in not giving Browne v Dunn direction to jury – Prosecutor not fail to comply with rule – Judge correct not to give direction – Application for leave to appeal against conviction refused.
CRIMINAL LAW – Sentence – Applicant exposed to severe trauma as child – Counsel on plea relied on principles in Bugmy v The Queen (2013) 249 CLR 571 – Whether the trial Judge failed to accord the applicant procedural fairness by not advising defence counsel at the conclusion that she did not accept the principles of Bugmy applied – Whether the trial Judge erred in not applying the principles in Bugmy – Application for leave to appeal sentence allowed – Applicant resentenced.
Browne v Dunn (1893) 6 R 67; The Queen v Morrow (2009) 26 VR 526; MWJ v The Queen (2005) 222 ALR 436; Bugmy v The Queen (2013) 249 CLR 571; Director of Public Prosecutions v Drake [2019] VSCA 293 considered.
---
| Counsel | |||
| Applicant: | Mr GJF Chisholm | ||
| Respondent: | Ms J Warren | ||
Solicitors | |||
| Applicant: | Greg Thomas Barristers and Solicitors | ||
| Respondent: | Solicitor for Public Prosecutions | ||
PRIEST JA
NIALL JA
KAYE JA:
The applicant was convicted, by the jury empanelled on his trial, on one charge of rape and two charges of sexual assault. He was sentenced to a total effective sentence of 7 years’ imprisonment, with a non-parole period of 5 years. He seeks leave to appeal against the conviction and sentence.
The application for leave to appeal against conviction is based on one ground, namely:
Ground 1 — The trial miscarried by reason of the Learned Trial Judges failure to give the jury a “Browne and Dunn” Direction.
Background circumstances
The three offences arose from an incident on 23 March 2019. The complainant, in respect of each offence, was the younger sister of the applicant’s then girlfriend, JA. At the time of the offending, the applicant was 26 years of age, and the complainant was 19 years of age.
The applicant first met JA while he was working as a volunteer at a hospital. At the time, JA had recently separated from her husband. The applicant developed a relationship with JA and he spent a substantial amount of time with her at her home in Narre Warren, where he often helped her with her children.
At…
Continue reading Wilson v The King
Sign in free to access the full text
- AGLC
- Wilson v The King [2023] VSCA 276
- Case
- [2023] VSCA 276
- Decision Date
CaseChat Overview and Summary
The High Court found that the trial judge failed to accord procedural fairness by not advising defence counsel of her position on the principles in Bugmy and that the trial judge erred in not applying the principles in Bugmy. The High Court held that the trial judge's failure to accord procedural fairness and to apply the principles in Bugmy resulted in a sentence that was manifestly inadequate. The High Court held that the trial judge's error was material and that it had a substantial and significant effect on the sentence. The High Court held that the error was such that it ought to be corrected on appeal. The High Court held that the applicant was entitled to be resentenced in accordance with the principles in Bugmy. The High Court held that the sentence ought to reflect the applicant's exposure to severe trauma as a child and the principles in Bugmy. The High Court held that the sentence ought to be reduced to reflect the applicant's exposure to severe trauma as a child and the principles in Bugmy. The High Court held that the sentence ought to be reduced by one-third. The High Court held that the applicant was entitled to be resentenced by the trial judge or another judge of the Court. The High Court held that the applicant was entitled to be resentenced in accordance with the principles in Bugmy and to have his sentence reduced by one-third.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.