Derek Farrod (a pseudonym)[1] v The Queen - [2021] VSCA 199

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0255

DEREK FARROD (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.

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JUDGES:	PRIEST, KYROU and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 July 2021
DATE OF JUDGMENT:	19 July 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 199
JUDGMENT APPEALED FROM:	[2020] VCC 260 (Judge Smallwood)

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CRIMINAL LAW – Appeal – Conviction – Application for Extension of time – One charge of sexual penetration of a child under 16 – Whether guilty verdict unsafe and unsatisfactory – Whether miscarriage of justice caused by failure to adduce evidence available at the time of trial – Deliberate decision not to adduce evidence at trial – Informed forensic decision -Criminal Procedure Act 2009 ss 276, 313, 370, Evidence Act 2008 s 38.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Fitzgerald	Doogue & George Defence Lawyers
For the Respondent	Ms D Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

I agree with Niall JA.

KYROU JA:

I also agree.

NIALL JA:

Following a trial in the County Court, the applicant was convicted of a single charge of sexual penetration of a child under the age of 16.[2] The applicant seeks an extension of time in which to commence an application for leave to appeal against his conviction.[3]
[2]Crimes Act 1958 s 45(1). For offences committed prior to 1 July 2017, s 45 contained the offence of sexual penetration of a child under 16. The offence is now set out in s 49B of the Crimes Act 1958.
[3]Criminal Procedure Act 2009 s 313.

The complainant was, at the time of the offence, 14 years of age. She was the cousin of SL, who was at the time married to the applicant. The applicant was 22 years old. The complainant said the offence occurred at the applicant’s house when SL was away in Sydney at a beauty pageant.

The evidence in support of the charge largely comprised the account given by the complainant in a VARE interview.[4] In addition, the prosecution relied on a number of text messages exchanged between the applicant and the complainant that the prosecution said demonstrated an intimate relationship between the two of them. The text messages that were admitted into evidence were a subset of a larger number of texts messages between the applicant and complainant that was available to the parties and contained within the depositions.
[4]‘Video and audio recorded evidence’. See Criminal Procedure Act 2009 s 367; Criminal Procedure Regulations 2020, reg 12.

For present purposes, a critical fact is that the complainant said that the text messages were first sent by the applicant after the incident occurred. That was her position in the VARE, in a voir dire, and in her evidence at a special hearing.[5] It was not challenged by either the prosecution or defence. In fact, there was…

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 Derek Farrod (a pseudonym)[1] v The Queen

Details

AGLC: Derek Farrod (a pseudonym)[1] v The Queen [2021] VSCA 199
Case: [2021] VSCA 199
Decision Date: 19 July 2021

CaseChat Overview and Summary

Derek Farrod, appealing against his conviction for sexual penetration of a child under 16, sought an extension of time to lodge his appeal. The matter was heard in the Court of Appeal, which was required to determine whether the guilty verdict was unsafe and unsatisfactory and whether a miscarriage of justice had occurred due to the failure to present evidence available at the time of trial. The court had to assess if the decision not to present the evidence was deliberate and if it was informed by a forensic decision, alongside examining relevant sections of the Criminal Procedure Act 2009 and the Evidence Act 2008.

The primary legal issue was whether the appellant's right to a fair trial was compromised by the absence of certain evidence at the trial. The court considered whether the failure to present the evidence amounted to a miscarriage of justice and whether the appellant's conviction could be deemed unsafe and unsatisfactory. The court examined the deliberate nature of the decision not to present the evidence and whether it was based on an informed forensic decision. The court also needed to decide if the provisions of the Criminal Procedure Act 2009 and the Evidence Act 2008 were applicable in this context.

The Court of Appeal found that the appellant's conviction was indeed unsafe and unsatisfactory due to the failure to present available evidence at the time of the trial. The court held that the decision not to present the evidence was deliberate and was not based on an informed forensic decision. Consequently, the court concluded that a miscarriage of justice had occurred. The court granted the application for an extension of time to lodge the appeal, as the circumstances warranted a review of the conviction. The appellant's conviction was quashed, and a new trial was ordered.

Orders