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Barry Perryman v The Queen

Barry Perryman v The Queen

Case [2019] VSCA 252 7 November 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0176

BARRY PERRYMAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	T FORREST, EMERTON and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 October 2019
DATE OF JUDGMENT:	7 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 252
JUDGMENT APPEALED FROM:	DPP v Perryman (Unreported, County Court of Victoria, Judge Lacava, 7 August 2018)

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CRIMINAL LAW – Appeal – Conviction – Rape – Sexual penetration of child under 16 –Facebook evidence – Affidavit evidence – DNA evidence – Whether fresh evidence – Whether new evidence – Whether trial legal advisors incompetent – Whether substantial miscarriage of justice occurred – No fresh evidence – No new evidence – No substantial miscarriage of justice – Leave to appeal refused – Hague v The Queen [2019] VSCA 218, Rich v The Queen (2014) 43 VR 558 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Gillespie-Jones	Ferraro Pruscino & Co
For the Respondent	Mr R L Gibson QC	Mr J Cain, Solicitor for Public Prosecutions

T FORREST JA
EMERTON JA
WEINBERG JA:

On 9 February 2018, the applicant was found guilty by a jury of one charge of rape. He was sentenced on 7 August 2018 as follows:

Charge	Offence	Maximum	Sentence
1	Rape (Crimes Act 1958 s 38(1))	25 years’ imprisonment	9 years’ imprisonment
2	Sexual penetration of a child under 16 years (Crimes Act1958 s 45(1))	15 years’ imprisonment	No verdict —alternative charge
Total effective sentence:		9 years’ imprisonment
Non-parole period:		6 years and 6 months
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		799 days
Section 6AAA statement:		N/A
Other relevant orders: · Disposal order · Registration pursuant to Sex Offenders Registration Act 2004 · Registrable period of 15 years

Trial summary

The evidence adduced in the prosecution case was that in August 2012, the complainant, then aged 15, had an interest in horse riding. Through that interest, she had met the applicant’s son at the applicant’s property at Tocumwal, in New South Wales. The complainant and the applicant’s son went out on an intermittent basis for about five or six months. During this period, the complainant met the applicant. He provided some training to the applicant aimed at improving her horse riding skills.

In mid-August 2012, after the complainant had broken up with the applicant’s son, she made an arrangement on Facebook to meet the applicant. The complainant left her house at 12.30 am on 11 August 2012. She walked to the Merrigum Hotel, which was close by. She met the then 44 year old applicant there. She stated that she got into his utility vehicle. He offered her a can of Coke and said, ‘Don’t skol it because it’s got alcohol in it’. They drove to a McDonald’s restaurant in Echuca, arriving there at about 1.10 am.

The complainant stated that, after purchasing takeaway food, the applicant drove to an area near a lake or river and a…

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 Barry Perryman v The Queen

Details

AGLC: Barry Perryman v The Queen [2019] VSCA 252
Case: [2019] VSCA 252
Decision Date: 7 November 2019

CaseChat Overview and Summary

The appellant, Barry Perryman, appealed against his conviction for the rape of a child under the age of 16, contending that the conviction should be quashed due to the absence of fresh or new evidence. The appeal was heard in the Victorian Court of Appeal. The central issue before the court was whether the evidence presented during the appeal was fresh or new, and if it could lead to a substantial miscarriage of justice. Additionally, the court had to determine whether the legal advisors during the trial were incompetent and if their alleged incompetence contributed to a substantial miscarriage of justice.

The court examined the nature of the evidence presented during the appeal. It found that the evidence, which included Facebook messages, an affidavit, and DNA evidence, did not constitute fresh or new evidence as per the relevant legal criteria. The court held that the evidence was not fresh because it was known or could have been known at the time of the trial. It was not new because it did not arise after the trial. The court applied the principles from Hague v The Queen and Rich v The Queen to conclude that the evidence did not meet the threshold for being considered fresh or new. Furthermore, the court found no merit in the appellant's claim that his legal advisors were incompetent or that their alleged incompetence led to a substantial miscarriage of justice.

In light of the findings, the court concluded that there was no fresh or new evidence, no incompetence of the trial legal advisors, and no substantial miscarriage of justice. Consequently, the court dismissed the appeal and refused the appellant leave to appeal. The conviction and sentence of the trial court were upheld.

Orders