and Dean Glover (a pseudonym)[1] v The Queen - [2016] VSCA 91

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0083
DEAN GLOVER (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	OSBORN, BEACH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	5 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 91
JUDGMENT APPEALED FROM:	DPP v [Glover] [2014] VCC 845 (Judge Cotterell)

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CRIMINAL LAW – Conviction – Application for leave to appeal against conviction – Charges of incest, assault, indecent act with child under 16 and indecent act with child aged 16 or 17 under care, supervision or authority – Jury address – Rhetorical question by prosecutor ‘Why would you not accept her?’ – Judge’s charge to jury – Whether judge’s summary of prosecutor’s address was erroneous – Use of expression ‘Why would she lie?’ – Redirection sought by trial counsel – Redirection given – Palmer v The Queen (1998) 193 CLR 1 referred to – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearances
For the Respondent

OSBORN JA
BEACH JA
McLEISH JA:

Introduction

In February 2014, following a trial in the County Court, the applicant was found guilty by a jury of one charge of common assault (charge 2), one charge of incest (charge 3), one charge of an indecent act with a child under 16 (charge 4) and one charge of an indecent act with a child aged 16 or 17 under care, supervision or authority (charge 7). At trial, the jury acquitted the applicant on a further charge of incest (charge 1) and a further charge of common assault (charge 5).

Prior to the empanelment of the jury in the applicant’s trial, the applicant pleaded guilty in front of the panel to two charges of knowingly producing child pornography. Following the applicant’s conviction, on 5 June 2014, the judge sentenced the applicant to a total effective sentence of six years and eight months’ imprisonment, with a non-parole period of five years and three months.[2]
[2]DPP v [Glover] [2014] VCC 845.

On 24 April 2015, the applicant filed a notice seeking leave to appeal against his conviction on the following ground:

1.There was a substantial miscarriage of justice in that in contravention of the principles laid down in Palmer v R:[3]
(a)     The learned prosecutor asked the jury during his closing address the question ‘why would you not accept her?’
(b)     In the learned trial judge’s charge to the jury, the learned trial judge summarised the learned prosecutor’s argument as ‘why would she lie?’
(c)     [A] redirection by the learned trial judge was insufficient, and unlikely to have had sufficient impact to correct the impugned direction.

[3]Palmer v The Queen (1998) 193 CLR 1 (‘Palmer’).

On 16 September 2015, Priest JA refused the…

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.

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Details

Case: [2016] VSCA 91
Decision Date: 5 May 2016

CaseChat Overview and Summary

The defendant, Dean Glover, applied for leave to appeal against his conviction on several criminal charges, including incest, assault, and indecent acts with children under his care. The case was heard in the High Court of Australia. Glover contended that the trial judge's summing up to the jury contained errors that warranted an appeal, specifically the judge's use of the phrase "Why would she lie?" in summarizing the prosecutor's address, which Glover argued misrepresented the prosecutor's rhetorical question, "Why would you not accept her?" Glover claimed this misrepresentation was prejudicial and denied him a fair trial.

The primary legal issue before the court was whether the trial judge's summation to the jury constituted a miscarriage of justice by mischaracterising the prosecutor's rhetorical question. Glover's counsel argued that the judge's use of "Why would she lie?" altered the rhetorical nature of the prosecutor's question, potentially influencing the jury's perception of the complainant's credibility. The court needed to determine whether this alteration was significant enough to warrant a new trial.

The High Court considered the impact of the judge's summation on the fairness of the trial. The court noted that the judge's remark, while perhaps not ideal, did not constitute a misdirection or a significant departure from the proper summing up of the evidence. The court referred to the principles established in Palmer v The Queen, highlighting that minor errors in summing up do not necessarily result in a miscarriage of justice. The court concluded that Glover's trial was fair, and the judge's summation did not prejudice the outcome to such an extent that it warranted a new trial. Consequently, the application for leave to appeal was refused.

Orders