| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0050 |
| RYAN CHURCHILL (A PSEUDONYM) | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGES: | BEACH, TAYLOR and ORR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 June 2024 |
| DATE OF JUDGMENT: | 28 June 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 151 |
| JUDGMENT APPEALED FROM: | [2023] VCC 300 (Judge O’Connell) |
---
CRIMINAL LAW – Appeal – Conviction – Incest – Complainant showed distress when making complaint – Judge directed that distress could be used as indirect evidence of offending – Judge failed to direct of need to be satisfied of causal link between distress and alleged offending – Judge failed to direct that distress evidence is generally of little weight – Substantial miscarriage of justice – Appeal allowed.
CRIMINAL LAW – Appeal – Conviction – Whether evidence of other misconduct admitted outside scope of agreement between prosecution and applicant – Forensic decision made by applicant to cross-examine using the evidence – Whether evidence of touching and affection irrelevant or unfairly prejudicial.
CRIMINAL LAW – Appeal – Conviction – Whether complainant’s mental conditions and descriptions of own memory so affected her reliability that the verdict was unreasonable.
Criminal Procedure Act s 276(1)(a); Jury Directions Act 2015 s 16.
M v The Queen (1994) 181 CLR 487; Nimely (a pseudonym) v The King [2023] VSCA 20; Paull v The Queen [2021] VSCA 339; Pell v The Queen (2020) 268 CLR 123; Seccull v The King (2022) 69 VR 454.
---
| Counsel | |||
| Applicant: | Ms R Shann SC with Ms H Canham | ||
| Respondent: | Ms S Clancy | ||
Solicitors | |||
| Applicant: | Doogue & George Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
TAYLOR JA
ORR JA:
On 12 September 2022, following a seven day trial in the County Court, the applicant was found guilty of two charges of incest contrary to s 44(2) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991. On 7 March 2023, following a plea hearing on 6 February 2023, the applicant was sentenced to a total effective sentence of 8 years and 6 months, with a non-parole period of 5 years.[1]
[1]DPP v Churchill (a pseudonym) [2023] VCC 300 (‘Sentencing Reasons’).
The applicant now seeks leave to appeal against conviction. His proposed grounds of appeal are as follows:
1.The trial miscarried by reason of the use the jury was invited to make of evidence of the complainant’s distress and the directions given in relation to it.
2.A substantial miscarriage of justice occurred because of the admission of misconduct evidence.
3.A substantial miscarriage of justice occurred because of the admission of evidence of the applicant touching and being affectionate towards the complainant (and her sister).
4.The verdicts are unreasonable and unable to be supported having regard to the evidence.
For the reasons which follow, proposed ground 1 will be upheld; the applicant’s convictions and sentences will be set aside; and we will order a retrial.
Relevant background
Both charges related to a…
Continue reading Churchill (a pseudonym) v The King
Sign in free to access the full text
- AGLC
- Churchill (a pseudonym) v The King [2024] VSCA 151
- Case
- [2024] VSCA 151
- Decision Date
CaseChat Overview and Summary
The appeal centred on several legal issues. Firstly, whether the trial court's direction on the complainant's distress as indirect evidence of offending was flawed. Secondly, whether evidence of other misconduct was improperly admitted outside the scope of the agreement between the prosecution and Churchill. Thirdly, whether the complainant's mental conditions and descriptions of her own memory affected her reliability to such an extent that the verdict was unreasonable. The court examined these issues against the relevant statutory provisions and the principles of criminal procedure and jury directions.
The court found that the trial court's direction on the complainant's distress was inadequate, as it failed to sufficiently instruct the jury on the need for a causal link between the distress and the alleged offending and the limited weight of such evidence. This omission constituted a substantial miscarriage of justice. The court also found that the evidence of other misconduct was improperly admitted, as it was outside the scope of the agreement between the prosecution and Churchill. However, the court considered the forensic decision made by Churchill to cross-examine using this evidence, which mitigated the error. Regarding the complainant's reliability, the court found that her mental conditions and descriptions of her memory did not render the verdict unreasonable. Consequently, the court allowed the appeal, set aside the convictions and sentences, and ordered a retrial.
The court ordered a retrial due to the substantial miscarriage of justice identified in the trial court's direction on the complainant's distress. The appeal against the admission of other misconduct evidence was considered but mitigated by the forensic decision made by Churchill. The complainant's reliability was found to be sufficient, and thus the appeal on this ground was dismissed. The court's decision underscores the importance of proper jury directions and adherence to agreed scopes of evidence in criminal trials.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.