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Flynn, Simon (a pseudonym) v The Queen [2020] VSCA 173

Victorian Court of Appeal
Niall, T Forrest and Weinberg JJA

Flynn, Simon (a pseudonym) v The Queen

Judgment Date: 
25 June 2020

CRIMINAL LAW - Appeal - Conviction - Applicant tried on indictment containing five charges of having, on three separate dates, raped his wife - Acquittal on charges 1-3, but conviction on charges 4 and 5 - Applicant's eldest son intervened in offending giving rise to charges 4 and 5 - Eldest son gave evidence against applicant by way of VARE and special hearing - Whether verdicts unsafe or unsatisfactory - Whether two jurors, separately, ought to have been discharged, for different reasons - Whether VARE tapes of applicant's children ought to have been exhibits - Whether judge correctly directed jury that evidence of what eldest son told his brother should be disregarded - Whether impermissible cross-examination of applicant - Whether substantial miscarriage of justice - Verdicts open to jury - No substantial miscarriage of justice - Leave to appeal against conviction refused.

CRIMINAL LAW - Appeal - Sentence - Two charges of digital rape - Sentence of 6 years' imprisonment on each charge - 2 years' cumulation - Total effective sentence of 8 years' imprisonment with non-parole period of 5 years - Whether sentence manifestly excessive - Rapes occurred within moments of each other - Single transaction rule - Order for cumulation manifestly excessive - Leave to appeal against sentence granted - Appeal allowed - Applicant resentenced to total effective term of 6 years and 6 months with non-parole period of 4 years.