Haynes (a pseudonym) v The King - [2024] VSCA 207

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0148

WILLIAM HAYNES (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

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

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JUDGES:	NIALL, WALKER and MACAULAY JJA
WHERE HELD:	Geelong
DATE OF HEARING:	28 August 2024
DATE OF JUDGMENT:	19 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 207
JUDGMENT APPEALED FROM:	DPP v Haynes (County Court of Victoria, Judge Tinney, 30 May 2023) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Historical sex offending against child – 20 year delay between alleged offending and trial – Whether judge erred in refusing to give forensic disadvantage direction – No forensic disadvantage due to lack of medical or forensic material – Forensic disadvantage due to inability to explore timing and circumstances of offending, to question witnesses as to whereabouts at time of offending, and intervening death of witness – Forensic disadvantages ‘significant’ when considered cumulatively – Application for leave to appeal granted – Appeal allowed – Convictions set aside and new trial ordered.

Jury Directions Act 2015, ss 12, 14, 38, 39.

Robbins (a pseudonym) v The Queen (2017) 269 A Crim R 244; PT v The Queen [2011] VSCA 43; Slater (a pseudonym) v The Queen [2020] VSCA 270; Greensill v The Queen (2012) 37 VR 257; Pate (a pseudonym) v The Queen (2015) 250 A Crim R 425; Carson (a pseudonym) v The Queen [2019] VSCA 4; Kenny (a pseudonym) v The Queen [2018] VSCA 220; Lucciano (a pseudonym) v The Queen (2021) 287 A Crim R 529, discussed.

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Counsel
Applicant:		Mr D Cronin with Mr T Battersby
Respondent:		Mr RL Gibson KC with Mr R Slattery
Solicitors
Applicant:	Dribbin & Brown
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
WALKER JA:

On 30 May 2023, following a trial by jury, the applicant was found guilty of three charges of incest and two charges of indecent act with a child under 16 years of age.[2] The charges concerned allegations of sexual abuse perpetrated by the applicant upon the complainant (‘PB’) between February 2001 and February 2004, when PB was between approximately eight and 10 years of age. The precise dates of the offending were not specified in the indictment. PB first complained about the offending in January 2021, when she told her sister and her aunt about it. She also complained to police in January 2021.
[2]Contrary to s 44(1) of the Crimes Act 1958 and s 47 of the Crimes Act 1958 respectively, as they appeared at the time of the alleged offending.
The applicant was first interviewed by the informant on 20 April 2021. The trial took place in May 2023. His case at trial was that PB was either mistaken or had fabricated the allegations. In the course of the trial the applicant’s counsel…

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 Haynes (a pseudonym) v The King

Details

AGLC: Haynes (a pseudonym) v The King [2024] VSCA 207
Case: [2024] VSCA 207
Decision Date: 19 September 2024

CaseChat Overview and Summary

The appellant, Haynes, was convicted by a jury of historical sexual offences against a child. The alleged offences took place over 20 years prior to the trial. The Crown Prosecution appealed the decision of the County Court of Victoria, challenging the judge's refusal to direct the jury on forensic disadvantage. The Supreme Court of Victoria heard the appeal and found that the judge had erred in not directing the jury on forensic disadvantage, leading to the setting aside of Haynes' convictions and ordering a new trial. The primary legal issue before the court was whether the trial judge erred in refusing to direct the jury on forensic disadvantage. The court considered whether the delay in bringing the charges and the intervening death of a witness constituted a significant forensic disadvantage for Haynes. The court noted that while there was no direct loss of medical or forensic material, there were significant disadvantages in the inability to explore the timing and circumstances of the alleged offending, to question witnesses as to their whereabouts at the time of the offending, and the death of a key witness. The court held that these disadvantages were significant when considered cumulatively and amounted to a forensic disadvantage warranting a direction to the jury.

The court relied on several precedents, including Robbins v The Queen, PT v The Queen, and Slater (a pseudonym) v The Queen, to establish the principles governing forensic disadvantage directions. The court found that the trial judge's failure to direct the jury on forensic disadvantage was an error that affected the outcome of the trial. The court concluded that the forensic disadvantages in this case were significant enough to warrant a direction to the jury and that the judge's failure to do so constituted a significant error. The court granted leave to appeal, allowed the appeal, and set aside the convictions. The court ordered a new trial, recognising the impact of the forensic disadvantages on Haynes' right to a fair trial. The court did not make any orders regarding costs.

Orders