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Gary Boyer (a pseudonym)[1] v The Queen

Gary Boyer (a pseudonym)[1] v The Queen

Case [2015] VSCA 242 11 September 2015

Appeal

Admissibility of Evidence

Unreliable Witness Warning

Jury's Verdict

Previous Representations

Evidence Act 2008

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2014 0285
S APCR 2014 0286

GARY BOYER (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 appellant.

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JUDGES:	PRIEST, KYROU and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 August 2015
DATE OF JUDGMENT:	11 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 242
JUDGMENT APPEALED FROM:	DPP v [Boyer] (Unreported, County Court of Victoria, 21 July 2014 and 12 August 2014 (conviction); 28 November 2014 (sentence))

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CRIMINAL LAW — Appeals — Conviction — Appellant convicted of sexual offending occurring in the 1980s — Two indictments involving two complainants — Separate trials —On first indictment whether the judge erred in refusing to give unreliable witness warning pursuant to s 165 of the Evidence Act 2008 — Whether the jury’s verdict is unsafe and unsatisfactory — On second indictment whether the judge erred by admitting evidence previous representations pursuant to s 66 of the Evidence Act 2008 — Whether occurrence of asserted fact ‘fresh in the memory’ when previous representations made —Whether the evidence of previous representations should have been excluded under s 137 of the Evidence Act 2008 —Appeals allowed.

CRIMINAL LAW — Appeal — Convictions quashed — Whether re-trial or acquittal appropriate — New trial ordered on one indictment, acquittal on the other.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C A Boston	Victorian Aboriginal Legal Service
For the Crown	Mr D A Trapnell QC with Ms S A Flynn	Ms V Anscombe, Acting Solicitor for Public Prosecutions

PRIEST JA:

Introduction

Throughout 2014, the applicant stood trial in the County Court on two indictments.

The first indictment,[2] alleged incest and indecent assault, involving his biological daughter, ‘DM’, between 1 January 1980 and 31 December 1980.
[2]Indictment D11604418A.

A second indictment,[3] charged the applicant with a single instance of indecent assault on ‘JP’ — who was the son of the applicant’s then partner — in a two year period between 2 July 1983 and 7 July 1985.
[3]Indictment D11604418B.

In circumstances I will later set out, the applicant was found guilty by juries empanelled to try him. Following a plea, on 28 November 2014 the trial judge sentenced the applicant to be imprisoned respectively for six years and 18 months for the offences of incest and indecent assault on the first indictment, and for 30 months for the offence of indecent assault on the second indictment. With an order for partial cumulation, the judge imposed a total effective sentence of seven years’ imprisonment, upon which a non-parole period of five years was fixed.

The applicant has sought leave to appeal against conviction and sentence on both indictments.

In my opinion, leave to appeal should be granted with respect to the convictions on both indictments, the appeals allowed and the convictions quashed. Those conclusions make it unnecessary to consider the applications touching sentence.

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 Gary Boyer (a pseudonym)[1] v The Queen

Details

AGLC: Gary Boyer (a pseudonym)[1] v The Queen [2015] VSCA 242
Case: [2015] VSCA 242
Decision Date: 11 September 2015

CaseChat Overview and Summary

The appellant, Gary Boyer, was convicted in relation to sexual offences that occurred in the 1980s, involving two complainants. The case was heard in the court of appeal. The primary issue before the court was whether the trial judge erred in not giving an unreliable witness warning to the jury, pursuant to section 165 of the Evidence Act 2008, and whether the jury's verdict was unsafe and unsatisfactory. Additionally, the court examined whether the judge erred by admitting evidence of previous representations made by the complainants under section 66 of the Evidence Act 2008, and whether the occurrence of the asserted fact was 'fresh in the memory' when the previous representations were made. The court also considered whether the evidence of previous representations should have been excluded under section 137 of the Evidence Act 2008.

The court found that the trial judge should have given an unreliable witness warning, as the evidence was such that no reasonable juror could find the witness credible. This omission constituted a substantial miscarriage of justice. The court also found that the judge erred by admitting evidence of previous representations without satisfying the criteria under section 66 of the Evidence Act 2008. The appellant's conviction on the first indictment was quashed, and a new trial was ordered. On the second indictment, the court found that the error in admitting the evidence of previous representations was not merely trivial, and thus the conviction was quashed, resulting in an acquittal.

The appeal was allowed, and the convictions were quashed. The court ordered a new trial on the first indictment and acquitted the appellant on the second indictment. This decision underscores the importance of ensuring the reliability of witness testimony and the proper application of statutory provisions when admitting evidence of previous representations.

Orders