Spurritt v The Queen [2021] VSCA 7

Court of Appeal (Vic)|2021-02-05|Before: Mr P, Beach JA, Kaye JA, Niall JA

The applicant should be granted leave to appeal on each of grounds 1 to 5.
The appeal should be allowed on grounds 1, 2 and 3 on the ground that the verdicts of the jury, convicting the applicant on charges 1, 2, 3, 4, 8 and 9 are unreasonable and cannot be supported having regard to the evidence.
The appeal should be allowed on ground 5 in respect of the verdicts of the jury convicting the applicant on charges 5, 6 and 7.
Each of the convictions of the applicant on charges 1 to 9 inclusive should be set aside, and in their place an order be made entering a judgment of acquittal of the applicant on each of those charges.

205 By reason of the conclusions that we have reached, it is not necessary to express our conclusions on the application for leave to appeal against sentence.

[3] Ibid 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (citations omitted). See also Fennell v The Queen [2019] HCA 37, [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).

[4] Pell [2020] HCA 12, [37], [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations omitted).

[5] Ibid [91] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

[6] R v Souleyman (1996) 40 NSWLR 712, 715 (Smart J); DPP v Garrett [2016] VSCA 31, [66]-[67] (Maxwell P, Redlich and Beach JJA); Saddik v The Queen [2018] VSCA 249, [86] (Kaye and Niall JJA); Murillo v The Queen [2020] VSCA 68, [93] (Kaye JA).

[7] Pell [2020] HCA 12, [91] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

[11] Ibid 319-20 [35], citing Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 682 (Dawson J).

CRIMINAL LAW - Appeal - Sentence and conviction - Applicant convicted of 9 charges of indecent assault of a male person under 16 - Total effective sentence of 5 years 8 months' imprisonment - Non-parole period of 3 years - Whether guilty verdicts unsafe and unsatisfactory - Whether miscarriage of justice due to volume of allegations in tendency evidence causing the jury's consideration of individual charges to be diverted - Whether miscarriage of justice caused by comments made by trial judge in charge to the jury - Whether sentence manifestly excessive - Appeal allowed - Convictions quashed - Judgments of acquittal entered - Criminal Procedure Act 2009 s 276, Evidence Act 2008 s 38, McKell v The Queen [2019] HCA 5; (2019) 264 CLR 307 applied.

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