Daniel Skinner (a pseudonym)[1] and v The Queen and - [2015] VSCA 26

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0043

DANIEL SKINNER (A PSEUDONYM)[1]

Appellant

THE QUEEN

Respondent

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

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JUDGES:	WEINBERG, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2015
DATE OF JUDGMENT:	24 February 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 26
JUDGMENT APPEALED FROM:	DPP v [Skinner] (Unreported, County Court of Victoria, Judge Harbison, 17 May 2013)

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CRIMINAL LAW – Criminal trial – Cross-examination of the accused – Limits upon cross-examination of an accused – Evidence – Jury directions – No objection taken at trial – Judge's role in conduct of trial – Role of counsel in conduct of trial – Substantial miscarriage of justice – Concession by Crown – Appeal allowed – Convictions quashed – Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J E McLoughlin with Mr J R Cass	Victoria Legal Aid
For the Crown	Mr D A Trapnell QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WEINBERG JA
PRIEST JA
BEACH JA:

On 17 May 2013, the appellant was convicted, after a trial in the County Court, of eight counts of indecent assault and one count of sexual penetration of a child under 10 (‘the 17 May offences’). On 17 July 2013, he was sentenced to a total effective sentence of 6 years and 5 months’ imprisonment on those charges. Four years of this sentence was ordered to be served cumulatively upon a sentence of 6 years and 4 months’ imprisonment imposed on the same day in respect of four other charges of indecent assault. Thus the appellant was sentenced to a total effective sentence of 10 years and 4 months’ imprisonment. A non-parole period of 6 years was fixed by the sentencing judge.

The 17 May offences were committed against four complainants, LC, MC, SW and IF. All of the complainants were young girls at the time of the appellant’s offending.

Following the appellant’s convictions in respect of the 17 May offences, the appellant sought leave to appeal those convictions on the following grounds:

1.A substantial miscarriage of justice resulted from the prosecutor, in cross-examination of the applicant:
a.repeatedly putting to the applicant that he was saying that the complainants were lying;
b.exploring at length the unlikelihood of the applicant’s former wife being behind the allegations against him;
c.asking the applicant to explain his failure to challenge LC’s application for Crimes Compensation and his failure to report IF’s demand for money to police.

2. The learned trial judge erred in directing the jury that they could use the applicant’s evidence of his belief that his former wife had set out to ruin him in assessing his credit.
3. The learned trial judge erred in failing to direct the jury that they should not use evidence of the applicant’s response…

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.

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Details

Case: [2015] VSCA 26
Decision Date: 24 February 2015

CaseChat Overview and Summary

Daniel Skinner, the appellant, brought an appeal against his convictions in the Supreme Court of Victoria, challenging the manner in which the trial was conducted. The appellant was found guilty of several serious criminal charges, and the crux of his appeal was the handling of his cross-examination and the judge's intervention during the trial. The legal issues centred on whether the trial judge's conduct and the manner of the cross-examination amounted to a substantial miscarriage of justice, and whether these factors warranted a retrial. The appellant argued that the judge's frequent interventions during the cross-examination limited his opportunity to respond adequately to the allegations against him, thereby infringing on his right to a fair trial.

The court considered the principle that a trial judge must ensure a fair trial but also observed that excessive intervention could prejudice the accused. The trial judge's conduct, according to the appellant, prevented him from effectively presenting his case and responding to the prosecution's allegations. The court noted that the appellant did not object to the judge's conduct at trial, which is typically a prerequisite for raising such issues on appeal. However, the court found that the judge's interventions were so significant that they constituted a substantial miscarriage of justice, warranting appellate review. The Crown conceded that the errors were substantial enough to warrant a retrial, leading the court to allow the appeal, quash the convictions, and order a retrial.

The Supreme Court of Victoria emphasised the importance of the judge's role in ensuring a fair trial and the necessity for counsel to object promptly to any perceived unfairness. The court acknowledged that while the appellant did not object at trial, the gravity of the errors made by the judge and the impact on the appellant's right to a fair trial justified reviewing the case on appeal. The court's decision highlights the balance required between judicial intervention and the preservation of the accused's rights during a criminal trial. The final orders of the court were to allow the appeal, quash the convictions, and order a retrial, ensuring that the appellant has an opportunity to present his case in a manner free from the errors identified.

Orders