Benton (a pseudonym) v The King

Case [2024] VSCA 182

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2023 0082
WARD BENTON (A PSEUDONYM)[1] Applicant
v
THE KING Respondent

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

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JUDGES: PRIEST, McLEISH and WALKER JJA
WHERE HELD: Melbourne
DATE OF HEARING: 31 July 2024
DATE OF JUDGMENT: 21 August 2024
MEDIUM NEUTRAL CITATION: [2024] VSCA 182
JUDGMENT APPEALED FROM: DPP v Benton (a pseudonym) (Unreported, County Court of Victoria, Judge Syme, 9 September 2022).

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CRIMINAL LAW – Appeal – Conviction – Sexual offending against child – Whether substantial miscarriage of justice because of alleged errors of trial counsel – Whether judge impermissibly conflated tendency evidence and context evidence in charge – Whether jury verdicts unreasonable and unsupported by evidence – Leave to appeal refused.

Evidence Act 2008, ss 97, 101; Criminal Procedure Act 2009, ss 342, 349.

R v Bauer (a pseudonym) (2018) 266 CLR 56; HML v The Queen (2008) 235 CLR 334; Hughes v The Queen (2017) 263 CLR 338; Packard (a pseudonym) v The Queen (2018) 271 A Crim R 353; Hickman (a pseudonym) v The Queen [2022] VSCA 75; Pell v The Queen (2020) 268 CLR 123, discussed; Baker (a pseudonym) v The King [2024] VSCA 87; TKWJ v The Queen (2002) 212 CLR 124; Allen (a pseudonym) v The Queen [2016] VSCA 59; M v The Queen (1994) 181 CLR 487; Churchill (a pseudonym) v The King [2024] VSCA 151, applied; IMM v The Queen (2016) 257 CLR 300, distinguished.

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Counsel
Applicant: Mr AL Hands
Respondent: Mr RL Gibson KC

Solicitors
Applicant: McNally & Gleeson Lawyers
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

  1. I agree with Walker JA, whose reasons for judgment I have had the considerable advantage of reading in draft.

MCLEISH JA:

  1. I agree with Walker JA.

WALKER JA:

  1. In September 2022 the applicant was convicted by a jury of eight offences involving his step-daughter (to whom I shall refer as ‘NV’). Those offences were:

    (a)three counts of committing an indecent act with or in the presence of a child under 16, contrary to s 47 of the Crimes Act 1958;[2]

    (b)two counts of incest, contrary to s 44(2) of the Crimes Act;[3]

    (c)three counts of sexual penetration of a child under the age of 16, contrary to s 45 of the Crimes Act.[4]

    [2]As in operation at the time of the alleged offending.

    [3]As in operation at the time of the alleged offending.

    [4]As in operation at the time of the alleged offending.

  2. He was sentenced to 15 years and 6 months’ imprisonment, with a non-parole period of 9 years and 3 months.[5]

[5]R v Benton (a pseudonym) (Unreported, County Court of Victoria, Judge Syme, 4 April 2023).

  1. The applicant now seeks leave to appeal against…

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Benton (a pseudonym) v The King [2024] VSCA 182
Case
[2024] VSCA 182
Decision Date

CaseChat Overview and Summary

Benton (a pseudonym) appealed against his conviction for sexual offences against a child, arguing that substantial errors made by his trial counsel and the trial judge resulted in a miscarriage of justice. The Court of Appeal was required to determine whether the alleged errors of counsel and the judge’s directions to the jury were significant enough to warrant a new trial. The court found that while some errors were identified, none of them resulted in a miscarriage of justice. Specifically, the decision not to object to the prosecution's approach to character evidence was deemed a rational forensic decision and did not prejudice the outcome. Similarly, the trial judge's directions, although somewhat conflated, were not so misapplied as to affect the jury's verdict. Consequently, the Court of Appeal refused leave to appeal, affirming the conviction.

The Court of Appeal considered several key legal issues, including the adequacy of defence counsel's representation and the proper use of tendency and context evidence in the trial. The court found that the defence counsel's decision not to object to certain aspects of the prosecution's evidence was a tactical choice within the bounds of reasonable legal strategy. The court also concluded that any perceived conflation by the trial judge between tendency and context evidence did not prejudice the jury's decision-making process. The court found that the jury's verdicts were reasonable and adequately supported by the evidence presented.

Given the findings, the Court of Appeal determined that no substantial miscarriage of justice had occurred. The trial's integrity and the fairness of the verdict were upheld, and thus the conviction was affirmed. The appeal was dismissed, and the original judgment remained in place.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Given that defence counsel was not aware of the evidence CS’s brother would give at the time of NV’s cross-examination at the special hearing, the only decision in issue, once that evidence had been given, was the decision not to seek leave to adduce further evidence from NV, which would have involved an interruption to the trial. In light of the fact that CS’s evidence was, on this question, uncontradicted, that decision was a rational forensic decision that was open to counsel. It did not lead to a miscarriage of justice.(3)Failure to challenge the tendency evidence (a)The tendency notice The prosecution served a tendency notice on the applicant prior to trial, as required by s 97(1)(a) of the Evidence Act 2008. The notice set out the tendencies the prosecution sought to rely upon as follows:2. The Prosecution seeks to rely upon the tendency of the Accused to:2.1 Act in a particular way, namely to act upon his sexual interest in the complainant by committing sexual acts upon her:(a) Taking advantage of his access to her and position of trust, power and authority over her by sexually offending against her while she was alone in his care;(b) Exploiting his position of trust, power and authority over her by creating opportunities to be alone with her in order to commit sexual acts upon her;(c) Offering inducements to ensure her compliance with or submission to the sexual acts he committed upon her;(d) Committing sexual acts upon her while another adult was in the vicinity.2.2 Have a particular state of mind, namely to have an inappropriate sexual interest in the complainant when she was aged between seven and sixteen, and a preparedness to act upon it. The evidence said to support the tendencies alleged was set out in Table A of the notice. It included both charged and uncharged sexual acts, including the alleged conduct in the swag at CS’s property. It also included the applicant’s desire that NV obtain a prescription for oral contraception. The notice stated that the issue in the case to which tendency reasoning applies was ‘whether the acts constituting the charges on the indictment occurred as alleged’. The notice specified in more detail the relationship between the tendencies alleged and the particular charges, as follows:6. The tendency set out at paragraph 2 is relied upon in support of the following charges as making more likely the facts founding those charges.6.1 Taking advantage of his access to her and position of trust, power and authority over her to sexually offend against her while she was alone in his care (Charges 1–3, 6, 7) 6.2 Exploiting his position of trust, power and authority by creating opportunities to be alone with her (Charges 4–6)6.3 Offering inducements to ensure compliance or submission (Charges 7 and 8);6.4 Committing sexual acts upon her while another adult was in the vicinity (Charges 3, 5 and 8);6.5 Acting on his sexual interest by committing sexual acts upon her (all charges).(b)The applicant’s arguments on counsel’s approach to the tendency evidence

Decision

Reasons for decision

Defence counsel’s decision not to object to the manner in which the prosecution approached the evidence given by the character witnesses was thus a rational forensic decision, not an error. Furthermore, the manner in which the character evidence was given and was dealt with by counsel and the judge was unexceptional and did not result in any miscarriage of justice.(6)Conclusion on ground 1 The applicant relied on five matters said to constitute errors on the part of defence counsel. In my opinion, only one of those matters constituted involved a decision that could not be characterised as a rational forensic decision by counsel (the failure to object to PL’s evidence concerning semen stains and hairs in the swag). For the reasons given above, I consider that this error did not result in any miscarriage of justice. I would therefore refuse leave to appeal on ground 1.PART C:GROUND 2: TRIAL JUDGE’S CONFLATION OF CONTEXT AND TENDENCY EVIDENCE Ground 2 was that a substantial miscarriage of justice occurred because the trial judge, when charging the jury, conflated the tendency and context evidence and suggested that the context evidence could be used as evidence of tendency. It is necessary, in considering this ground of appeal, to set out in detail the judge’s directions on context and tendency evidence. In relation to tendency evidence, the judge’s charge was as follows: Members of the jury, part of the prosecution case is that the accused has demonstrated a sexual interest in the complainant and further, it is part of the prosecution case that he has demonstrated a willingness to act on that interest. Madam Prosecutor has outlined a summary of some of this evidence as contained in the evidence of the complainant during her evidence-in-chief and cross-examination. In summary, the allegations of the prosecution are that the accused in particular demonstrated the state of mind and taking advantage of the accused, by taking advantage of his access to or proximity to the complainant and the position of trust and authority that the prosecution say he had over the complainant by, the prosecution say, sexually offending against her while she was alone in his care. They rely in particular on the evidence contained in Charges 1, 2, 3, 6 and 7 for the this sort of conclusion. The prosecution say that further, by exploiting the accused’s position of trust and authority over the complainant, he created opportunities to be alone with her in order to commit sexual acts upon her and in particular they refer to the evidence in Charges 4, 5 and 6 that we have just gone through.The prosecution say further, that from time to time, the accused offered inducements to the complainant to ensure her compliance with or submission to the particular sexual acts that they allege he committed on her and these are Charges 7 and 8.The prosecution argues that this evidence taken either individually or as a whole, will lead you to accept what the prosecutor submits is that he had a sexual interest in the child and further, that he had a tendency to act on that sexual interest. In response, [counsel], for the defence says that you would not accept the evidence of the complainant on any and certainly not all of these matters. These are factual matters for you to decide members of the jury. I do not propose to give you any further summary or direction on those matters. You know the allegations are. What I am explaining to you is how you can use the allegations if you find them to be true. If you do find that the accused had a sexual interest in the complainant and, was willing to act on that sexual interest, and if you find that by considering the evidence for example on one charge, then you can use that consideration or finding to consider whether the accused is more likely to have committed another charge. You will consider this by deciding whether the evidence, whatever it is you decide it is, can lead you to a conclusion as to his state of mind and whether that state of mind existed.

Ratio Decidendi

Legal Principle Established

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