Henderson v The Queen - [2021] VSCA 312

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0185

MATTHEW HENDERSON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KYROU and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 October 2021
DATE OF JUDGMENT:	16 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 312
JUDGMENT APPEALED FROM:	DPP v Henderson (Unreported, County Court of Victoria, Judge Quin, 19 March 2020) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Sexual assault and sexual penetration of child under 12 – Whether verdicts unreasonable or cannot be supported by the evidence – Prosecution case dependent on complainant’s account – Whether complainant credible and reliable – Whether alleged offending improbable – Jury should have had a reasonable doubt about guilt – Appeal allowed – M v The Queen (1994) 181 CLR 487, Pell v The Queen (2020) 268 CLR 123 applied – Criminal Procedure Act 2009 s 276(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr J Shaw	Gallant Law
For the Respondent:	Ms E Ruddle QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
T FORREST JA:

Introduction

On 19 March 2020, a jury empanelled in the County Court found the applicant guilty of sexual assault[1] (charge 1) and sexual penetration of a child under 12[2] (charge 2). The complainant, ‘SW’, was aged seven years at the time of the alleged offending.[3] She was the daughter of ‘SMJ’, then a friend of the applicant.
[1]Crimes Act 1958, s 40.
[2]Crimes Act 1958, s 49A.
[3]SW was born in November 2010.

SW’s allegations against the applicant were contained in a VARE[4] interview with police conducted on Saturday, 29 September 2018. A few days later, on 2 October 2018, ‘MJH’, the applicant’s daughter then aged eight,[5] also participated in a VARE, in which she provided her account of events relevant to charge 2.
[4]Video and audio recorded evidence. See CPA, s 367; and Criminal Procedure Regulations 2009, Part 2.
[5]MJH was born in December 2009.

In the lead-up to the applicant’s trial, on 27 August 2019 evidence was taken pre-trial from MJH, and from SMJ, pursuant to s 198A of the Criminal Procedure Act 2009 (‘CPA’). Further, an intermediary was appointed for SW pursuant to s 389J of the CPA, and a ‘ground rules hearing’ under s 389B was held on 9 September 2020. Pursuant to s 372 of the CPA, SW gave evidence with the assistance of the intermediary at a special hearing conducted on 14 October 2019.

The jury was empanelled on 10 March 2020. In the course of the ensuing trial, SW’s VARE, and her recorded evidence from the special hearing, were played as part of the prosecution case. MJH’s VARE stood as her evidence-in-chief, and she was cross-examined by the applicant’s counsel. Other evidence in the prosecution case was received from SMJ; SW’s grandmother, ‘CMP’; the applicant’s partner, ‘HT’; and from the informant, Senior Constable Renee Beier. No evidence was adduced by the defence, although the applicant’s version…

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 Henderson v The Queen

Details

AGLC: Henderson v The Queen [2021] VSCA 312
Case: [2021] VSCA 312
Decision Date: 16 November 2021

CaseChat Overview and Summary

In the High Court of Australia, Henderson appealed against his conviction for sexual assault and sexual penetration of a child under 12. The case arose from an incident where the complainant alleged that Henderson had assaulted her on multiple occasions when she was under the age of 12. The jury found Henderson guilty based on the testimony of the complainant and other evidence presented at trial. Henderson appealed the conviction, arguing that the verdicts were unreasonable or could not be supported by the evidence.

The primary legal issues for the court to decide were whether the verdicts were unreasonable or unsupported by the evidence, particularly given that the prosecution's case was heavily reliant on the credibility of the complainant's account. The court also had to determine whether the alleged offending was improbable and whether the jury should have had a reasonable doubt about Henderson's guilt. The appeal hinged on the principles established in M v The Queen and Pell v The Queen, which set out the criteria for assessing the reliability of a complainant's testimony in sexual assault cases.

The court found that the evidence presented was not sufficient to support the jury's verdict beyond reasonable doubt. The complainant's testimony was considered unreliable due to inconsistencies and contradictions. Furthermore, the court determined that the alleged offending was improbable, given the circumstances and the lack of corroborating evidence. The court concluded that the jury should have had a reasonable doubt about Henderson's guilt, given the deficiencies in the prosecution's case. Consequently, the appeal was allowed, and Henderson's convictions were quashed.

The final orders of the court were that the convictions for sexual assault and sexual penetration of a child under 12 were quashed, and Henderson was acquitted of the charges. The court ordered that Henderson be released from custody unless he was being detained for another reason. This decision underscores the importance of the reliability of complainant testimony and the need for sufficient evidence to support a conviction in sexual assault cases.

Orders