Healy (a pseudonym) v The King - [2024] VSCA 81

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2023 0162
JOSEPH HEALY (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]Because a retrial has been ordered, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name and the reasons have been prepared in a form which omits identifying details.

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JUDGES:	BEACH, WALKER and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2024
DATE OF ORDERS:	23 April 2024
DATE OF REASONS:	30 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 81
JUDGMENT APPEALED FROM:	DPP v [Healy] (County Court of Victoria, Judge Smallwood, 17 August 2023) (Conviction); (County Court of Victoria, Judge Smallwood, 24 August 2023) (Sentence)

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CRIMINAL LAW – Appeal – Conviction – Applicant was convicted of sexual offences involving children – Where prosecutor relied on incriminating conduct reasoning – Where no notice was given of intention to rely on incriminating conduct reasoning – Direction to jury not sufficient to ameliorate irregularity – Substantial miscarriage of justice – Appeal allowed – Retrial ordered.

Jury Directions Act 2015, ss 19, 20, 21.

Pompei v The King [2023] VSCA 71, discussed; Baini v The Queen (2012) 246 CLR 469, applied.

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Counsel
Applicant:		Ms J Swiney
Respondent:		Ms E Ruddle KC
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
WALKER JA
KAYE JA:

The applicant was convicted of four sexual offences[2] concerning two complainants: two counts of sexual assault of a child under the age of 16[3] in relation to DH (charges 1 and 5), one count of sexual assault of a child under the age of 16[4] in relation to EH (charge 2) and one count of sexual penetration of a child under the age of 12[5] in relation to EH (charge 4). He was sentenced to a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years.[6]
[2]He had been charged with five sexual offences, but the judge directed an acquittal on charge 3, which was sexual assault of a child under 16.
[3]Contrary to s 49D(1) of the Crimes Act 1958.
[4]Contrary to s 49D(1) of the Crimes Act 1958.
[5]Contrary to s 49A(1) of the Crimes Act 1958.
[6]DPP v [Healy] (County Court of Victoria, Judge Smallwood, 24 August 2023) (‘Reasons’).
Following his conviction, the applicant sought leave to appeal against his conviction on a single ground, as follows:
The trial of the Applicant miscarried where the learned Prosecutor relied on incriminating conduct type reasoning in his final address when a) no notice of incriminating conduct had been filed and b) no notice had been given that the learned prosecutor would be relying on such reasoning.
The respondent conceded that the prosecutor, in his closing address to the jury, had made submissions that carried the risk of the jury engaging in incriminating conduct reasoning, in circumstances in which no notice of incriminating conduct had been given by the prosecution, as required by…

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 Healy (a pseudonym) v The King

Details

AGLC: Healy (a pseudonym) v The King [2024] VSCA 81
Case: [2024] VSCA 81
Decision Date: 30 April 2024

CaseChat Overview and Summary

The case of Healy (a pseudonym) v The King involved an appeal against the applicant's conviction for sexual offences involving children. The prosecution had relied on incriminating conduct reasoning without providing the required notice to the applicant, which is mandated under the Jury Directions Act 2015. The Supreme Court of Victoria was tasked with determining whether this procedural irregularity had led to a substantial miscarriage of justice, warranting a retrial.

The court had to decide whether the failure to give proper notice of the intention to rely on incriminating conduct reasoning constituted a significant procedural defect that undermined the fairness of the trial. The legal issue centred on the interpretation and application of sections 19, 20, and 21 of the Jury Directions Act 2015, which prescribe the conditions under which incriminating conduct reasoning can be admitted. The court considered precedents such as Baini v The Queen and Pompei v The King, which had established the gravity of such procedural failures in criminal trials.

The court concluded that the procedural defect was indeed substantial, as the failure to provide notice prevented the applicant from adequately preparing a defence against the incriminating conduct reasoning. Despite the direction given to the jury, the court held that it did not sufficiently mitigate the irregularity. Therefore, the court allowed the appeal and ordered a retrial, finding that the irregularity had likely influenced the jury's decision and thus constituted a miscarriage of justice. The court’s decision underscored the importance of procedural integrity in criminal trials, particularly regarding the admissibility of incriminating conduct reasoning.

The final orders of the court included the quashing of the applicant's conviction and the ordering of a retrial, ensuring that the trial would be conducted in compliance with all statutory requirements and procedural safeguards.

Orders