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Allen (a pseudonym) v The Queen

Allen (a pseudonym) v The Queen

Case [2013] VSCA 263 20 September 2013

Appeal

Admissibility of Evidence

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0252
REGINALD ALLEN (A PSEUDONYM)	Applicant
v
THE QUEEN	Respondent

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JUDGES	REDLICH, COGHLAN JJA and T FORREST AJA
WHERE HELD	BALLARAT
DATE OF HEARING	31 May 2013
DATE OF JUDGMENT	20 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 263	1^st Revision 24 Sept 2013 [11], [35], [37]
JUDGMENT APPEALED FROM	(Unreported, County Court of Victoria, Judge Tinney, 19 October 2012)

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CRIMINAL LAW – Appeal against conviction on charges of indecent assault and rape – Complainant cognitively impaired and suffering from schizophrenia – Request made by counsel for an unreliability direction – Section 165(1)(c) of Evidence Act 2008 – Whether evidence of a kind that may be unreliable – Warning at common law where witness suffering from mental ill health – Bromley v The Queen (1986) 161 CLR 315 considered – Whether s 165 requires different approach – Divergent views of intermediate Courts of Appeal – R v Flood [1999] NSWCCA 198; R v Stewart (2001) 52 NSWLR 301; Lane v The Queen (1996) 66 FCR 144 – Whether reasonable possibility that evidence of a kind that may be unreliable – Role of trial judge – Whether ‘good reason’ for not giving warning – Issue at trial whether the sexual assaults were consensual – Evidence at trial of the complainant’s mental health history – Jury conscious of potential unreliability – Leave to appeal refused.

CRIMINAL LAW – Sentence – Total effective sentence of eight years and three months – Whether sentence manifestly excessive – Leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Victoria Legal Aid
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
COGHLAN JA

T FORREST AJA:

On 15 August 2012, the applicant was convicted of three charges of indecent assault and one charge of rape following a jury trial in the County Court sitting at Ballarat. The offences were said to have occurred on 18 January 2010.

Following a plea, the applicant was sentenced on 19 October 2012 as follows:

Charges on Indictment	Offence	Maximum		Sentence	Cumulation
1.	Indecent assault [Crimes Act 1958 s 39(1)]	10 years [Crimes Act 1958 s 39(1)]		18 months	4 months
2.	Indecent assault	10 years		12 months	2 months[1]
3.	Indecent assault	10 years		30 months	9 months[2]
4.	Rape [Crimes Act 1958 s 38(1)]	25 years [Crimes Act 1958 s 38(1)]		7 years	Base
Total Effective Sentence:			8 years 3 months’ imprisonment
Non-Parole Period:			6 years
Pre-Sentence Detention Declaration:			69 days
6AAA Statement:			N/A
Other Orders: Sentenced as a Serious Sexual Offender on Charges 2 and 3; Forensic Sample Retention Order.

[1]Expressed in the sentencing remarks as 10 months to be served concurrently– see (‘Reasons’) DPP v [Allen] (Unreported, County Court of Victoria, Judge Tinney, 19 October 2012) [82].

[2]Expressed in the sentencing remarks as 21 months to be served concurrently. See Reasons, [82].

The offences are all…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allen (a pseudonym) v The Queen

Details

AGLC: Allen (a pseudonym) v The Queen [2013] VSCA 263
Case: [2013] VSCA 263
Decision Date: 20 September 2013

CaseChat Overview and Summary

The appellant, Allen, was convicted of indecent assault and rape. The victim in the case was cognitively impaired and suffered from schizophrenia. Allen appealed against his conviction and sentence. The appeal centred on the reliability of the victim's testimony, given her cognitive impairment and mental health issues. The court had to determine whether the evidence presented was of a kind that might be unreliable under section 165(1)(c) of the Evidence Act 2008, and whether the trial judge should have given an unreliability direction to the jury.

The court considered whether the evidence might be unreliable due to the victim's mental health issues and whether this warranted a warning at common law, as discussed in Bromley v The Queen. The court examined the approach required under section 165 of the Evidence Act and whether it necessitated a different method compared to the common law. The court also considered the differing views of intermediate Courts of Appeal on this issue. The court concluded that the trial judge did not have good reason to withhold a warning, as the jury was already aware of the potential unreliability of the evidence. The court found that the trial judge should have given an unreliability direction.

Allen also appealed against his sentence, arguing it was manifestly excessive. The court reviewed the sentence and found it to be within an acceptable range, thus the appeal against sentence was dismissed. The court ultimately upheld Allen's conviction but ordered a new trial due to the failure to provide an unreliability direction. The appeal against sentence was dismissed, and the case was remitted to the trial court for a new trial on the issue of conviction.

Orders