AJS v The Queen [2007] HCA 27

HIGH COURT OF AUSTRALIA

GLEESON CJ

KIRBY, HAYNE, HEYDON AND CRENNAN JJ

AJS APPELLANT

AND

THE QUEEN RESPONDENT

AJS v The Queen

[2007] HCA 27

13 June 2007

M2/2007

ORDER

1. Appeal allowed.

2. Set aside paragraph 4 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 7 December 2005 and in its place order that:

(a) judgment and verdict of acquittal be entered in respect of the charge of incest contrary to s 44(1) of the Crimes Act 1958 (Vic);

(b) there be a new trial limited to the offence of taking part in an indecent act contrary to s 47(1) of the Crimes Act 1958 (Vic) with the person named in the presentment filed on 3 February 2004.

On appeal from the Supreme Court of Victoria

Representation

C B Boyce with L C Carter for the appellant (instructed by Victoria Legal Aid)

J D McArdle QC with C M Quinn for the respondent (instructed by Solicitor for Public Prosecutions (Vic))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

AJS v The Queen

Criminal law – Verdicts – Statutory alternative verdicts – Appellant convicted by jury of one count of incest – Because of verdict on count of incest jury was not required to consider statutory alternative verdict of indecent act with a child aged under 16 – Court of Appeal quashed the conviction for insufficient evidence and ordered a new trial without specifying what charge or charges were to be tried – Whether the Court of Appeal should have entered a verdict of acquittal on the count of incest.

Criminal law – Verdicts – Appellate jurisdiction – Whether the Court of Appeal's jurisdiction pursuant to s 568(2) of the Crimes Act 1958 (Vic) either to enter a verdict of acquittal or order a new trial should be read with the provisions of ss 421 and 425 regulating alternative verdicts.