[1]To avoid the risk of identifying a victim of a sexual offence, these reasons for judgment have been anonymised by the use of a pseudonym in place of the applicant’s name.

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JUDGES:	PRIEST, TAYLOR and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 October 2024
DATE OF JUDGMENT:	28 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 293
JUDGMENT APPEALED FROM:	DPP v Bernard (a pseudonym) [2022] VCC 2345 (Judge Syme)

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CRIMINAL LAW – Appeal – Conviction – Indecent assault of adopted daughter – Alleged offending between 1973 and 1975 – Judge alone trial – Whether trial unacceptably unfair due to delay – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Indecent assault of adopted daughter – Alleged offending between 1973 and 1975 – Judge alone trial – Whether substantial miscarriage of justice due to failure of defence counsel to adduce evidence concerning accuracy of memory and other matters – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Indecent assault of adopted daughter – Alleged offending between 1973 and 1975 – Judge alone trial – Whether error in failing to uphold defence hypotheses consistent with innocence – Whether other error in judge’s reasoning – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Indecent assault of adopted daughter – Total effective sentence 4 years and 6 months’ imprisonment with 2 years and 9 months non-parole – Alleged offending between 1973 and 1975 – Whether judge erred in finding absence of remorse – Whether judge erred in failing to take into account applicant’s age – Whether judge erred in failing to take into account sentencing practices at time of offending – Appeal allowed – Appellant resentenced to total effective sentence of 3 years’ imprisonment with 21 months non-parole.

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Counsel
Applicant:		Ms CA Boston SC with Ms B Kelly
Respondent:		Ms D Piekusis KC with Ms E Allan
Solicitors
Applicant:	Galbally & O’Bryan Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
ORR JA:

Introduction

On 15 November 2022, following a ‘judge alone’ trial in the County Court,[2] the trial judge found the applicant guilty of four charges of indecently assaulting his adopted child, ‘NC’,[3] a girl under the age of 16 years, between 1 January and 31 December 1973 (charges 1 and 2), and 1 January and 31 December 1975 (charges 3 and 4).[4]
[2]Chapter 9 of the Criminal Procedure Act 2009, inserted by the COVID-19 Omnibus (Emergency Measures) Act 2020, which permitted trial by judge alone, has since been repealed.
[3]The applicant formally adopted NC in 1970.
[4]DPP v Bernard (a pseudonym) [2022] VCC 2345 (Judge Syme) (‘Reasons for conviction’).
During the period embraced by the charges, the applicant, now aged 78 years,[5] was aged between 26 and 29 years, and NC was between 10 and 13 years of age.[6]
[5]His date…

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 Bernard (a pseudonym) v The King

Details

AGLC: Bernard (a pseudonym) v The King [2024] VSCA 293
Case: [2024] VSCA 293
Decision Date: 28 November 2024

CaseChat Overview and Summary

The appellant, Bernard (a pseudonym), appealed against his conviction and sentence for indecent assault of his adopted daughter. The alleged offending occurred between 1973 and 1975. The case was heard in the High Court of Australia, which was asked to consider the fairness of the trial, the reasoning in the trial judge's decision, and the sentencing. Bernard argued that the delay between the alleged offending and the trial rendered the proceedings unacceptably unfair, that the defence counsel's failure to adduce certain evidence led to a substantial miscarriage of justice, and that the judge failed to properly consider hypotheses consistent with his innocence and made other errors in reasoning. Bernard also challenged the sentence, arguing that the judge erred in finding an absence of remorse, in not considering his age at the time of the offending, and in not taking into account sentencing practices at the time of the offending.

The High Court examined whether the delay in the trial proceedings was so significant as to render them unacceptably unfair. The court also assessed whether the failure of defence counsel to adduce certain evidence led to a substantial miscarriage of justice, and whether the trial judge erred in not upholding defence hypotheses consistent with innocence and in other aspects of reasoning. Furthermore, the Court reviewed the sentencing, considering whether the judge erred in finding an absence of remorse, in not taking into account Bernard's age at the time of the offending, and in not considering the sentencing practices at the time of the offending.

The High Court found that the trial was not unacceptably unfair due to the delay, nor was there a substantial miscarriage of justice due to the failure of defence counsel. The court also held that there were no errors in the trial judge's reasoning, including in relation to the hypotheses of innocence. However, regarding the sentence, the Court found that the judge erred in finding an absence of remorse, in not considering Bernard's age at the time of the offending, and in not taking into account sentencing practices at the time. Consequently, the appeal against the sentence was allowed, and Bernard was resentenced to a total effective sentence of three years' imprisonment with a non-parole period of 21 months.

The High Court upheld the conviction but allowed the appeal against the sentence. Bernard was resentenced to a total effective sentence of three years' imprisonment with a non-parole period of 21 months. The Court rejected the other grounds of appeal, including those related to the fairness of the trial and the trial judge's reasoning.

Orders