| 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…
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- AGLC
- Healy (a pseudonym) v The King [2024] VSCA 81
- Case
- [2024] VSCA 81
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
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Evidence Before The Court
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Decision
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