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Cavanaugh (a pseudonym) v The Queen

Cavanaugh (a pseudonym) v The Queen

Case [2021] VSCA 347 13 December 2021

Appeal

Jurisdiction

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0154

LARRY CAVANAUGH (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

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

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JUDGES:	MAXWELL P, KAYE and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 October 2021
DATE OF JUDGMENT:	13 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 347
JUDGMENT APPEALED FROM:	[2020] VCC 1946 (Judge Dawes)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of ten charges of incest and five charges of indecent act with a child under 16 years – Whether jury verdicts unreasonable or could not be supported having regard to the evidence – Offences committed against applicant’s stepson over eight year period – Prosecution case based on complainant’s evidence – Direction given to jury pursuant to Liberato v The Queen (1985) 159 CLR 507 – Relevant witnesses deceased at time of trial – Significant forensic disadvantage direction given to the jury – Applicability of rule in Browne v Dunn (1893) 6 R 67 to criminal trials – Leave to appeal granted – Appeal dismissed – Criminal Procedure Act 2009 s 276(1)(a), Jury Directions Act 2015 ss 39, 44I, 44L, 52, 53, 54D, 64 – Pell v The Queen (2020) 268 CLR 123, MWJ v The Queen (2005) 222 ALR 436 considered.

CRIMINAL LAW – Appeal – Procedure – Application for extension of time to file application for leave to appeal against conviction – Significant delay – Delay largely caused by applicant’s previous counsel – Applicant made prompt and timely efforts to commence appeal – Ground of appeal arguable – Extension granted – Bolton (a pseudonym) v The Queen [2021] VSCA 117, Bolton (a pseudonym) v The Queen [2021] VSCA 237.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Matthews	Slades & Parsons Solicitors
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the respective reasons for judgment of Kaye JA and Walker JA.

For the reasons given by Kaye JA, I would grant the application for an extension of time within which to file the application for leave to appeal against conviction. I would, however, wish to reinforce what was said by this Court in Bolton[2] about the obligation of legal practitioners to ensure that time limits for the filing of applications in this Court are complied with.
[2]Bolton (a pseudonym) v The Queen [2021] VSCA 117; Bolton (a pseudonym) v The Queen [2021] VSCA 237.

As Niall JA said in the first Bolton decision:

The delay … was explained by the workload of counsel. In my view, that is a weak reason to justify an extension of time. Given the existence of time limits, it was incumbent on counsel to take steps to finalise the…

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 Cavanaugh (a pseudonym) v The Queen

Details

AGLC: Cavanaugh (a pseudonym) v The Queen [2021] VSCA 347
Case: [2021] VSCA 347
Decision Date: 13 December 2021

CaseChat Overview and Summary

The matter before the Court involved an appeal by the applicant, identified as Cavanaugh, against his conviction for ten charges of incest and five charges of indecent acts with a child under the age of sixteen. The offences were alleged to have been committed against the applicant’s stepson over an eight-year period. The appeal centred on the contention that the jury verdicts were unreasonable or could not be supported by the evidence. The prosecution’s case relied predominantly on the testimony of the complainant, with relevant witnesses being deceased at the time of the trial. The trial judge provided a significant forensic disadvantage direction to the jury, and the court was required to determine the applicability of the rule in Browne v Dunn to criminal trials.

The legal issues before the Court involved the assessment of whether the jury verdicts were unreasonable or unsupported by the evidence, particularly in light of the complainant being the sole witness and the deceased status of other relevant witnesses. The Court also considered the trial judge’s direction to the jury regarding the significant forensic disadvantage, and whether the rule in Browne v Dunn applied to criminal trials. The Court examined the statutory provisions under the Criminal Procedure Act 2009 and the Jury Directions Act 2015, and considered the precedents of Pell v The Queen and MWJ v The Queen.

The Court found that the jury verdicts were not unreasonable or unsupported by the evidence, and that the trial judge’s direction to the jury was appropriate. The Court held that the rule in Browne v Dunn did not apply to criminal trials. The Court dismissed the appeal, but granted an extension of time for the applicant to file an application for leave to appeal, as the delay in lodging the application was largely due to the actions of the applicant’s previous counsel. The Court noted the applicant’s prompt and timely efforts to commence the appeal, and that the ground of appeal was arguable. The decision was informed by the cases of Bolton (a pseudonym) v The Queen.

Orders