Legal Research
Cases
Danny (a pseudonym) v The Queen

Danny (a pseudonym) v The Queen

Case [2020] VSCA 8 7 February 2020

Appeal

Conviction

Unreliability Warning

Jury Directions

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0156

CARL DANNY (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

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

---

JUDGES:	KYROU, KAYE JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 January 2020
DATE OF JUDGMENT:	7 February 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 8

---

CRIMINAL LAW – Appeal – Conviction – Applicant convicted on three counts of committing an indecent act with a child under 16 years and one count of attempting to commit an indecent act with a child under 16 years – Two child complainants – Whether verdicts unreasonable due to inconsistencies in and implausibility of complainants’ accounts – No material inconsistencies – Verdicts not unreasonable – Whether substantial miscarriage of justice due to failure of trial judge to give unreliability warning to jury – No error in failing to give unreliability warning – Leave to appeal granted – Appeal dismissed – Young v The Queen [2015] VSCA 265; Hudson (a pseudonym) v The Queen [2017] VSCA 122 and Wade (a pseudonym) v The Queen [2019] VSCA 168 considered; Jury Directions Act 2015 ss 12, 14, 31 and 32; Evidence Act 2008 s 165.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J O’Connor	Emma Turnbull Lawyers
For the Respondent	Mr P Bourke	Ms A Hogan, Acting Solicitor for Public Prosecutions

KYROU JA

KAYE JA
CROUCHER AJA:

The applicant was charged on indictment with four counts of committing an indecent act with a child under 16 years of age (charges 1, 2, 3 and 5) and one count of attempting to commit an indecent act with a child under 16 years of age (charge 4). After a trial in the County Court, he was convicted on charges 2, 3, 4 and 5. The jury was unable to reach a verdict on charge 1. The applicant was sentenced to a total effective term of two years’ imprisonment with a non-parole period of sixteen months.

The applicant seeks leave to appeal against his convictions on two grounds, namely:

1.The verdicts of the jury on charges 2-5 are unreasonable or cannot be supported having regard to the evidence, pursuant to s 276(1)(a) of the Criminal Procedure Act 2009.
2.A substantial miscarriage of justice occurred due to the failure of the trial judge to direct the jury in accordance with s 32 of the Jury Directions Act 2015.

Background and circumstances of offences

The offences were alleged to have been committed between July 2015 and 24 June 2016. The two complainants were step-sisters. The first complainant, CBH,[2] was born in April 2005, and was aged between ten and eleven years at the time of the offending. The second complainant, BLS, was born in August 2008, and was seven years of age at the time of the offending. They lived with their mother NS, BLS’ father LS,…

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 Danny (a pseudonym) v The Queen

Details

AGLC: Carl Danny (a pseudonym)[1] v The Queen [2020] VSCA 8
Case: [2020] VSCA 8
Decision Date: 7 February 2020

CaseChat Overview and Summary

The applicant, referred to as Danny, appealed his conviction on three counts of committing an indecent act with a child under 16 years and one count of attempting to commit an indecent act with a child under 16 years. The appeal was heard in the Supreme Court of Victoria. The case involved two child complainants who provided accounts of the alleged incidents, which Danny contested. The primary issues before the court were whether the verdicts were unreasonable due to inconsistencies in and implausibility of the complainants’ accounts, and whether there was a substantial miscarriage of justice due to the trial judge's failure to give an unreliability warning to the jury.

The court found that there were no material inconsistencies in the accounts of the two child complainants, and the verdicts were not unreasonable. Furthermore, the court held that the trial judge did not err in failing to give an unreliability warning to the jury. The court considered the relevant provisions of the Jury Directions Act 2015 and the Evidence Act 2008, as well as the decisions in Young v The Queen [2015] VSCA 265, Hudson (a pseudonym) v The Queen [2017] VSCA 122, and Wade (a pseudonym) v The Queen [2019] VSCA 168. The court concluded that the verdicts were open to the jury and the appeal was dismissed.

Although leave to appeal was granted, the Supreme Court found no merit in the appeal and dismissed it. The court held that the trial judge had correctly applied the law and that there was no substantial miscarriage of justice in the proceedings. The decision of the trial court was upheld, and Danny's convictions remained intact.

Orders