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 | 1st 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…
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- AGLC
- Allen (a pseudonym) v The Queen [2013] VSCA 263
- Case
- [2013] VSCA 263
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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