Bradley Dickins v The Queen - [2019] VSCA 284

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0195

BRADLEY DICKINS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE, McLEISH and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 November 2019
DATE OF JUDGMENT:	5 December 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 284 First Revision: 5 December 2019
JUDGMENT APPEALED FROM:	[2018] VCC 1338 (Judge Mullaly)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of one charge of committing an indecent act in the presence of a child under 16 years and one charge of sexual penetration of a child under 16 years – Whether verdicts unreasonable – Whether evidence of complainant reliable – Complainant with intellectual and speech impairments – Complainant susceptible to suggestion from adults – Significant inconsistencies and deficiencies in complainant’s recollection not attributable to complainant’s impairments – Real possibility complainant’s recollection was product of suggestion by trusted family member – Leave to appeal granted – Appeal allowed – Convictions on both charges set aside and substituted with verdicts of not guilty – Criminal Procedure Act 2009 s 276(1)(a) – R v Klamo (2008) 18 VR 644; R v Baden-Clay (2016) 258 CLR 308; Fennell v The Queen [2019] HCA 37 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr M FitzGerald	Doogue & George Pty Ltd
For the Respondent	Mr J C J McWilliams	Solicitor for Public Prosecutions

KAYE JA
McLEISH JA
ASHLEY JA:

The applicant was convicted, by the jury empanelled on his trial, of one charge of committing an indecent act in the presence of a child under 16 years (charge 1) and one charge of sexual penetration of a child under 16 years (charge 2). He was sentenced to a total effective sentence of 7 years and 9 months’ imprisonment, with a non-parole period of 5 years and 9 months. The applicant seeks leave to appeal the conviction on both charges on the ground that the verdicts are unsafe and unsatisfactory. He also seeks leave to appeal the sentences on the ground that the individual sentences and the non-parole period are manifestly excessive.

Background

The offences were alleged to have been committed on 31 July 2012, when the victim, JG, was ten years of age.[1] JG has suffered (and still suffers) from an intellectual disability and a language impairment, and at times he attended a special school. The charges were based on an interview conducted by the informant with JG by way of a VARE procedure. As will be explained later in the reasons, the account given by JG, in the VARE, was fragmented, not sequential, and, in parts, internally inconsistent.
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the use of initials in place of the names of the complainant and other witnesses.

The applicant was a close friend of JG’s parents. At the time of the offending the applicant was employed, on a part-time basis, inspecting and performing maintenance and repair works on children’s rides at various…

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 Bradley Dickins v The Queen

Details

AGLC: Bradley Dickins v The Queen [2019] VSCA 284
Case: [2019] VSCA 284
Decision Date: 5 December 2019

CaseChat Overview and Summary

Bradley Dickins appealed his conviction for one count of committing an indecent act in the presence of a child under 16 years and one count of sexual penetration of a child under 16 years. The appeal was heard in the High Court of Australia. The complainant, who had intellectual and speech impairments, was susceptible to suggestion from adults. The appeal centred on whether the trial judge should have considered the verdicts unsafe and unsatisfactory.

The appeal raised two primary issues: first, whether the verdicts were unreasonable given the complainant’s impaired ability to provide reliable evidence, and second, whether there were significant inconsistencies and deficiencies in the complainant’s recollection that could have been influenced by suggestion from a trusted family member. The court had to consider whether these factors rendered the verdicts unsafe and unsatisfactory.

The court held that the trial judge should have considered the verdicts unsafe and unsatisfactory. The complainant’s evidence was not reliable due to significant inconsistencies and deficiencies in her recollection, which were not attributable to her impairments. There was a real possibility that the complainant’s recollection was influenced by a trusted family member. The court found that the evidence did not exclude the reasonable possibility that the complainant’s recollection was the product of suggestion, and this undermined the reliability of her evidence. The appeal was allowed, and the convictions were set aside with verdicts of not guilty substituted in their place.

The final orders were that leave to appeal was granted, the appeal was allowed, and the convictions on both charges were set aside with verdicts of not guilty substituted in their place. The decision was influenced by sections of the Criminal Procedure Act 2009 and precedents such as R v Klamo, R v Baden-Clay, and Fennell v The Queen.

Orders