Churchill (a pseudonym) v The King

Case [2024] VSCA 151

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2023 0050
RYAN CHURCHILL (A PSEUDONYM) Applicant
v
THE KING Respondent

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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)

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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.

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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:

  1. 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’).

  2. 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.

  3. 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

  4. Both charges related to a…

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Churchill (a pseudonym) v The King [2024] VSCA 151
Case
[2024] VSCA 151
Decision Date

CaseChat Overview and Summary

Churchill (a pseudonym) v The King involved an appeal against the applicant's convictions and sentences for two counts of incest. The applicant, Churchill, had entered into a de facto relationship with Rachel Russo, the complainant's mother, in 2003. Around six months later, Russo and her three daughters, including the complainant, moved into Churchill's home. The charges related to incidents in 2005 when the complainant was 13 or 14 years old and Churchill was 36 or 37. The complainant alleged that Churchill had engaged in sexual acts with her on two separate occasions. The Crown relied heavily on the complainant's testimony, which was recorded in 2018 and played during the trial. The trial court directed the jury to consider the complainant's distress as indirect evidence of the offending but failed to adequately instruct them on the causal link between the distress and the alleged offences or the limited weight of such evidence. Churchill appealed, arguing that the trial court's directions constituted a substantial miscarriage of justice.

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

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Background

Background to the litigation

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 single complainant, one of the applicant’s stepdaughters, Isla Murphy.[2][2]In these reasons, we have used the same pseudonyms as those used by the trial judge in the Sentencing Reasons. In 2003, the applicant entered into a de facto relationship with the complainant’s mother, Rachel Russo. About six months later, Ms Russo and her three daughters, including the complainant, moved into the applicant’s home. The Crown case at trial was that on two occasions between July and October 2005, the applicant penetrated the complainant’s vagina with his penis. At the time of each offence, the complainant was aged 13 or 14 years; and the applicant was 36 or 37. In short compass, the Crown case was that, during 2005, Ms Russo fell pregnant. One evening, late in her pregnancy, the applicant entered the complainant’s bedroom and sat down on her bed. The complainant told him that she wanted to go to sleep. The applicant said to the complainant words to the effect, ‘Out of your sisters, I like you the most’; and that she was an attractive girl. The complainant again said to the applicant that she wanted to sleep. The applicant, however, became upset and pulled down the complainant’s bedcovers. He then climbed on top of her, pulled down her pyjamas and inserted his penis into her vagina. He continued to penetrate her for two or three minutes until he ejaculated outside her vagina. These were the events alleged to constitute the first of the two incest charges. On 15 October 2005, Ms Russo gave birth to her fourth child. She remained in hospital for a further four or five days. During that period, the complainant and her sisters stayed at home with the applicant. On one occasion during that period, the applicant was seen by the complainant at the doorway of the bathroom, watching her while she was showering. She told the applicant to get out. He responded, however, by saying that he owned the house. That evening, the applicant went into the complainant’s bedroom when she was in bed listening to music. He again lay on top of her and inserted his penis into her vagina. These events were alleged to constitute the second charge of incest. There being no witnesses to the applicant’s alleged offending other than the complainant, at trial, the Crown case was heavily dependent on the complainant’s evidence. Her evidence was recorded at a special hearing that took place in October 2021. In the special hearing, the complainant adopted the contents of her Video and Audio Recorded Evidence (‘VARE’), which was recorded in 2018. The recording of the VARE was played at the trial, as was the recording of the special hearing. In addition to playing the recordings of the complainant’s VARE and the special hearing at trial, the prosecution called evidence from the complainant’s mother, Ms Russo; the complainant’s two sisters, BB and CC; and the informant. A record of interview conducted with the applicant was played to the jury during the course of the informant’s evidence. At trial, the applicant did not give evidence or call any witnesses.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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