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Best v The Queen

Best v The Queen

Case [2012] VSCA 277 21 November 2012

Criminal Liability

Admissibility of Evidence

Judicial Review

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0241

ROBERT CHARLES BEST	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, TATE and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 October 2012
DATE OF JUDGMENT	21 November 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 277

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CRIMINAL LAW – Conviction – Seven counts of unlawful and indecent assault of a male under the age of 16 which occurred between 1971 and 1974 when the complainant was a pupil of the school of which the appellant was the principal – Whether verdict unsafe and unsatisfactory – Delay – Complainant recalled incidents by way of flashbacks – Complainant suffering ‘dissociation’ which led him to give incomplete evidence on previous occasion – Independent witness identified by the complainant as present during two of the offences denied that the offences occurred – Open to jury to be satisfied of appellant’s guilt beyond reasonable doubt.

CRIMINAL LAW – Evidence – Prosecutor’s failure to call material witness – Rational tactical choice by defence to seek Jones v Dunkel direction instead of pressing objection and seeking stay – No substantial miscarriage of justice in the circumstances of the case – R v Apostolides (1984) 154 CLR 563, applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P Morrissey SC	Stynes Dixon Lawyers
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Osborn JA. For the reasons which his Honour gives, I too would dismiss the appeal.

TATE JA:

I agree with Osborn JA.

OSBORN JA:

The appellant is a member of the Christian Brothers Order of the Roman Catholic Church and a former principal of a Catholic primary school in provincial Victoria. In 2011 he was convicted by a jury of seven counts of unlawful and indecent assault of a male under the age of 16. The alleged assaults occurred between 1971 and 1974 when the complainant, a pupil of the school, was aged between eight and 11 years old.

This appeal is brought against these convictions on two grounds:

(1) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, pursuant to s 276(1)(a) of the Criminal Procedure Act 2008.

(2) by reason of the Crown’s failures

(a) to disclose the true nature of the dissociations or other relevant mental issues or treatments, and

(b) to approach and call the mother of the complainant,

there has been a substantial miscarriage of justice, pursuant to s 276(1)(c) of the Act.

Ground 2(a) was abandoned on the hearing of the appeal.

As was stated by Maxwell P in R v Vjestica,[1] the High Court’s decision in M v The Queen[2] makes clear the approach required in considering the first ground of appeal:[3]
[1][2008] VSCA 47.
[2](1994) 181 CLR 487.
[3]R v Vjestica [2008] VSCA 47, [60]; See…

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 Best v The Queen

Details

AGLC: Best v The Queen [2012] VSCA 277
Case: [2012] VSCA 277
Decision Date: 21 November 2012

CaseChat Overview and Summary

Best v The Queen was a case heard by the High Court of Australia. The appellant was convicted by a jury of seven counts of unlawful and indecent assault of a male under the age of 16. These offences occurred between 1971 and 1974 when the complainant was a pupil of the school where the appellant was the principal. The appeal was brought on the basis that the verdict was unsafe and unsatisfactory due to the delay in reporting the incidents and the manner in which the complainant recalled the events through flashbacks.

The legal issues before the court were whether the delay in reporting the assaults and the nature of the complainant's evidence rendered the verdict unsafe and unsatisfactory, and whether the failure of the prosecution to call a material witness resulted in a substantial miscarriage of justice. The court was required to determine whether these factors undermined the jury's ability to be satisfied of the appellant's guilt beyond reasonable doubt. The court also had to consider the tactical decisions made by the defence in the context of the evidence presented.

In examining the first issue, the court found that the jury was open to being satisfied beyond reasonable doubt of the appellant’s guilt, despite the delay and the manner in which the complainant recalled the incidents. The court held that the jury was entitled to consider the complainant's evidence as credible, especially given the corroborative nature of the independent witness's testimony, even though the witness denied the occurrence of two of the offences. Regarding the second issue, the court determined that the failure to call the material witness did not result in a substantial miscarriage of justice. It was noted that the defence had strategically chosen to seek a direction under Jones v Dunkel rather than object and seek a stay, and that this decision did not prejudice the appellant's case. The court applied the principles established in R v Apostolides, concluding that there was no substantial miscarriage of justice in the circumstances of this case.

The appeal was dismissed, and the convictions were upheld. The court's decision affirmed the importance of the jury's role in assessing the credibility of witnesses and the weight of the evidence presented, while also acknowledging the tactical choices made by the defence.

Orders