Hickman (a pseudonym) v The Queen - [2022] VSCA 75

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0221

PHILLIP HICKMAN (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victims of sexual offending, this

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JUDGES:	T FORREST, WALKER and MACAULAY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 March 2022
DATE OF JUDGMENT:	28 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 75
JUDGMENT APPEALED FROM:	[2020] VCC 513 (Judge Higham)

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CRIMINAL LAW – Appeal – Conviction – Charges of sexual penetration of a child under 12 and sexual activity in the presence of a child under 16 – Where complainant’s video and audio recordings of evidence contained inconsistencies and discrepancies – Whether verdict of jury unreasonable – Whether jury must, as distinct from might, have entertained doubt about applicant’s guilt – Criminal Procedure Act 2009, s 276 – M v The Queen (1994) 181 CLR 487, R v Baden-Clay (2016) 258 CLR 308, Pell v The Queen (2020) 268 CLR 123, applied – Extension of time granted – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J O’Connor	Victoria Legal Aid
For the Respondent	Ms E Ruddle QC	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA
WALKER JA
MACAULAY JA:

Introduction and summary

On 19 February 2020, a jury convicted the applicant of four charges of sexual offending against a girl who was, at the time of the offending, aged between 10 and 11 years. The charges arose out of three separate incidents which took place in the western district of Victoria: an incident at a tennis court (charge 2), an incident at Lake Bullen Merri (charges 4 and 6) and an incident in a car at Peterborough (charge 8). Charges 2 and 4 were charges of sexual penetration of a child under 12, and charges 6 and 8 were charges of sexual activity in the presence of a child under 16.

The charges were laid after the police had interviewed the complainant on two occasions, 3 March 2019 and 31 May 2019. Pursuant to s 367 of the Criminal Procedure Act 2009 (‘CPA’), the audiovisual recordings of the interviews (together, the ‘VAREs’)[2] stood as the complainant’s evidence-in-chief at the trial.
[2]VARE is the acronym for Video and Audio Recording of Evidence.

The applicant seeks leave to appeal against the convictions on a single ground, namely:

The verdicts on charges 2, 4, 6 and 8 were unreasonable and/or cannot be supported by the evidence having regard to:
(a) the inconsistent evidence provided by the complainant; and
(b)the complainant acknowledged a lie, during her first VARE, concerning an allegation of sexual penetration at an abandoned house or abandoned shack.

The application for leave to appeal was filed some four and a half months out of time. To proceed, the applicant requires an extension of time in which to file his notice of application to appeal. He made an application for extension of…

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 Hickman (a pseudonym) v The Queen

Details

AGLC: Hickman (a pseudonym) v The Queen [2022] VSCA 75
Case: [2022] VSCA 75
Decision Date: 28 April 2022

CaseChat Overview and Summary

In the case of Hickman v The Queen, the appellant was convicted of sexually penetrating a child under 12 years of age and engaging in sexual activity in the presence of a child under 16 years of age. The appellant sought leave to appeal against his conviction, arguing that the jury’s verdict was unreasonable due to inconsistencies and discrepancies in the complainant's video and audio recordings of evidence. The matter was heard in the High Court of Australia, which was tasked with determining whether the jury must have entertained a doubt about the appellant’s guilt, as opposed to merely being permitted to do so.

The central legal issue before the court was whether the jury's verdict was unreasonable given the inconsistencies in the complainant’s evidence. The appellant contended that the discrepancies were such that the jury must have had a doubt about his guilt, thus rendering the verdict unsafe and unsatisfactory. The court examined the applicable legal principles, including the provisions of the Criminal Procedure Act 2009 and relevant case law, such as M v The Queen, R v Baden-Clay, and Pell v The Queen. The court had to determine whether the jury was compelled to have entertained a doubt about the appellant’s guilt, considering the nature and extent of the inconsistencies in the evidence.

The court held that while the inconsistencies in the complainant's evidence were significant, they did not compel the jury to have entertained a doubt about the appellant’s guilt. The court noted that the jury was entitled to consider all the evidence, including the inconsistencies, and decide whether the appellant was guilty beyond a reasonable doubt. The court further observed that the inconsistencies did not undermine the overall reliability of the complainant's testimony to the extent that the jury must have had a doubt about the appellant’s guilt. Consequently, the court found that the jury's verdict was not unreasonable and dismissed the appeal. The court granted the appellant an extension of time and leave to appeal, but ultimately dismissed the appeal on the basis that the jury’s verdict was open to them based on the evidence presented.

Orders