Reconsideration of facts underlying the statutory alternative count
- In the leading judgment of Adamson JA (with whom Dhanji J and Sweeney J agreed), (at [36]-[38]) her Honour summarised the victim's evidence of what had occurred which had given rise to the offence under count 5. An aspect of that was the victim giving evidence (in late March 2023) that she was either 13 or 14 years of age when the conduct of which she complained (occurring in 2015) occurred. As was recorded in the judgment on appeal (at [210]), in my summing up to the jury on count 5, I had noted that the Crown had conceded before the jury that there was doubt whether the conduct was committed when she was younger than 14 years of age. To reiterate, the only reason for the Court to set aside count 5 and convict on the alternative was of the essential element of the offence giving rise to that count that the victim was aged between 10 and 14.
- My Earlier Remarks for count 5 appeared at [17]-[19]. I see no reason to alter what I remarked in [17] and [19]. But the finding at [18] of my Earlier Remarks does require re-consideration.
- Specifically, both parties contend, and I accept, the offender should be sentenced upon the same factual findings made in My Earlier Remarks save for the qualification of the age of the victim being 14 years at the time of the statutory alternative count, as opposed to 13 years.