[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.

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JUDGES:	PRIEST and SANTAMARIA JJA, and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 September 2016
DATE OF JUDGMENT:	17 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 272
JUDGMENT APPEALED FROM:	R v [Davis] (Unreported, County Court of Victoria, Judge Gaynor, 15 November 2014 (Conviction), 17 December (Sentence))

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CRIMINAL LAW – Appeal – Conviction – Sexual offences – Retrial – Whether failure to extend time for commencement of trial within statutory time limit – Whether trial a nullity – Criminal Procedure Act 2009, s 212 – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Sexual offences – Lies in record of interview as incriminating conduct – Whether failure to give proper notice – Whether error in admitting lies in record of interview as incriminating conduct – Whether failure to direct properly on incriminating conduct – Jury Directions Act 2013, s 23(1) – Jury Directions Act 2015, s 20(1) – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Sexual offences – Retrial – Whether error in admitting recording of complainant’s from previous trial – Criminal Procedure Act 2009, s 381 – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Sexual offences – Retrial – Directed acquittal on one charge at previous trial – Whether error in admitting evidence of circumstance founding previous charge as uncharged act – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Sexual offences – Ground claiming aggregate of errors – Not appropriate to shelter complaints of discrete error under ‘catchall’ ground – No errors substantiated – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Applicant convicted at trial of multiple charges of sexual penetration of child under 16 and indecent act with child under 16 – Sentence of 7 years’ imprisonment with non-parole period of 5 years – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P A D’Arcy	Galbally Rolfe
For the Crown	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
SANTAMARIA JA
CAVANOUGH AJA:

Introduction

The applicant twice faced trial in the County Court with respect to a number of alleged sexual offences against three children.

He was first tried in March 2015. During the course of that trial (‘the first trial’), the judge directed an acquittal with respect to charge 1 on the indictment, which alleged the sexual penetration of a child under the age of 16. Otherwise, the jury were unable to agree. They were thus discharged without verdict on all of the other charges.

Following a second trial in October and November 2015 (‘the second trial’), a jury…

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 Davis (a pseudonym) v The Queen

Details

AGLC: Davis (a pseudonym) v The Queen [2016] VSCA 272
Case: [2016] VSCA 272
Decision Date: 17 November 2016

CaseChat Overview and Summary

The appellant, Davis (a pseudonym), appealed against his conviction and sentence in relation to multiple charges of sexual penetration and indecent acts involving a child under 16 years of age. The case was heard in the High Court of Australia, which considered various grounds of appeal, including procedural errors and the severity of the sentence. Davis argued that there were errors in the trial process, including the admission of certain evidence and the timing of the trial. The Crown, represented by the Attorney-General for the Commonwealth, contended that the trial was conducted properly and that the sentence was appropriate.

The court was required to determine whether the trial was conducted in accordance with the law, specifically addressing whether the trial was a nullity due to the failure to commence within the statutory time limit. Additionally, the court examined whether there were errors in the admission of evidence, such as the recording of the complainant's testimony from a previous trial and the lies recorded in an interview. The court also considered whether the aggregate of errors, if any, warranted a new trial and whether the sentence was manifestly excessive.

The High Court found that the trial was not a nullity as the statutory time limit for the commencement of the trial was not strictly adhered to, but there was no prejudice to the appellant. The court held that the trial judge did not err in admitting the recording of the complainant's previous testimony or in directing the jury on the incriminating conduct. It was determined that the lies in the record of interview were properly admitted as incriminating conduct. The court further found that there was no error in admitting evidence of the circumstance founding a previous charge as an uncharged act and that the aggregate of errors did not warrant a new trial. Finally, the court held that the sentence was not manifestly excessive and did not constitute an error of law.

The High Court refused leave to appeal against the conviction and sentence, upholding the decisions of the lower courts. The appellant's conviction for multiple charges of sexual penetration and indecent acts involving a child under 16, as well as the sentence of 7 years' imprisonment with a non-parole period of 5 years, was affirmed.

Orders