L L W v The Queen

(2012) 35 VR 372; [2012] VSCA 54

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Trial
3. › Alternative verdicts
4. › Jury required to acquit on principal count before delivering verdict on alternative count
5. › No restriction on jury's consideration of alternative counts before verdict
6. › Offence of sexual penetration of child under 16 not statutory alternative to offence of rape
7. › Whether general rule applies by analogy
8. › Crimes Act 1958 (Vic), ss 38, 45, 425(1)
9. › Criminal Procedure Act 2009 (Vic), s 239(1)
1. Criminal Law
2. › Trial
3. › Alternative verdicts
4. › Paired counts of rape and sexual penetration of child under 16
5. › Practice of pleading paired counts
6. › When sexual penetration should be pleaded as alternative to rape
1. Criminal Law
2. › Conviction
3. › Unsafe and unsatisfactory verdict
4. › Jury confusion about alternative verdicts
5. › Inconsistent directions by trial judge
6. › Whether miscarriage of justice
7. › Criminal Procedure Act 2009 (Vic), s 276
1. Criminal Law
2. › Juries
3. › Majority verdicts
4. › Disclosure of voting breakdown by jury
5. › Jury note revealing votes on each count
6. › Whether denial of procedural fairness by judge's failure to advise counsel of precise contents of jury note
7. › Whether miscarriage of justice

Quick Take

Where sexual penetration of a child under 16 is pleaded as a separate alternative count to rape (rather than as a statutory alternative under s 425(1)), the same rule applies: the jury must acquit on the rape count before delivering a verdict on the sexual penetration count. However, this rule governs only the order of verdicts, not the order of deliberation. Sexual penetration should only be pleaded as an alternative to rape where consent or belief in consent is a realistic live issue; where the defence is total denial, paired counts are inappropriate and should be abandoned.