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Conolly (a pseudonym) v The Queen

Conolly (a pseudonym) v The Queen

Case [2019] VSCA 125 5 June 2019

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0284

LIAM CONOLLY (a Pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

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

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JUDGES:	PRIEST, BEACH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 June 2019
DATE OF JUDGMENT:	5 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 125
CONVICTION APPEALED FROM:	DPP v [Conolly] (Unreported, County Court of Victoria, Judge O’Connell, 21 June 2018 (Conviction))

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CRIMINAL LAW – Appeal – Conviction – Offences alleged between 1978 and 1986 – Applicant convicted of three charges of indecent assault and one charge of gross indecency – Applicant acquitted of one charge of indecent assault, one charge of assault with intent to commit incest and two charges of incest – Prosecution case reliant on credibility and reliability of complainant – Whether verdicts inconsistent – Whether verdicts of guilty unsafe and unsatisfactory – Application for leave to appeal granted – Appeal allowed – Conviction and sentences quashed – Judgment and verdicts of acquittal entered – M v The Queen (1994) 181 CLR 487 applied; Libke v The Queen (2007) 230 CLR 559, MFA v The Queen (2002) 213 CLR 606, Tyrrell v The Queen [2019] VSCA 52 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Malik	Victoria Legal Aid
For the Respondent	Mr P L Burke	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
KYROU JA:

Introduction

An indictment filed in the County Court charged the applicant with sexual offending against his stepdaughter, ‘FJ’,[2] in a period of almost eight years, between 1 September 1978 and 26 February 1986. During that period, FJ was aged between eight and 15 years,[3] and the applicant was aged between 40 and 47 years.[4]
[2]The applicant married FJ’s mother in November 1979.
[3]FJ was born in mid-1970.
[4]His date of birth is 3 March 1938.

The indictment contained four[5] charges of indecent assault[6] (charges 1, 2, 3 and 7); assault with intent to commit incest[7] (one charge – charge 5); incest[8] (two charges – charges 4 and 8); and gross indecency[9] (one charge – charge 6).
[5]The face of the indictment incorrectly recorded that there were five charges.
[6]Charges 1, 2 and 3 were laid under s 55(1) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 1967; and charge 7 was laid under s 44(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980. The maximum penalty in each case was five years’ imprisonment.
[7]Crimes Act 1958, s 52(2) (as amended by the Crimes (Sexual Offences) Act 1980.
[8]Crimes Act 1958, s 52(1) (as amended by the Crimes (Sexual Offences) Act 1980.
[9]Crimes Act 1958, s 50(1) (as amended by the Crimes (Sexual…

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 Conolly (a pseudonym) v The Queen

Details

AGLC: Conolly (a pseudonym) v The Queen [2019] VSCA 125
Case: [2019] VSCA 125
Decision Date: 5 June 2019

CaseChat Overview and Summary

Conolly (a pseudonym) v The Queen is a case involving an appeal against a conviction by the applicant, referred to as Conolly, for multiple charges of indecent assault and gross indecency, alleged to have occurred between 1978 and 1986. Conolly was acquitted of other charges including indecent assault, assault with intent to commit incest, and incest. The case was heard and determined by the court of appeal, which had to decide whether the verdicts were inconsistent and whether the convictions were unsafe and unsatisfactory.

The primary legal issues in this case revolved around the consistency of the verdicts and the safety and satisfactoriness of the convictions. The court needed to determine whether the verdicts were inconsistent and, if so, whether the guilty verdicts were unsafe and unsatisfactory. This involved a detailed examination of the credibility and reliability of the complainant, the cornerstone of the prosecution case. The court was also required to consider relevant legal principles and precedents, particularly those concerning the unreliability of complainants in sexual offence cases.

The court found that the verdicts were indeed inconsistent, and the guilty verdicts were unsafe and unsatisfactory, primarily due to the unreliability of the complainant. The reasoning was grounded in established legal principles and precedents, including the cases of M v The Queen, Libke v The Queen, MFA v The Queen, and Tyrrell v The Queen. These authorities provided a framework for assessing the reliability of the complainant and the consistency of the verdicts. Consequently, the appeal was allowed, the convictions were quashed, and judgments and verdicts of acquittal were entered in Conolly's favour.

Orders