Hill v The Queen - [2021] VSCA 316

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0183

BEN HILL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and T FORREST JJA and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 October 2021
DATE OF JUDGMENT:	18 November 2021
MEDIUM NEUTRAL CITATION	[2021] VSCA 316
JUDGMENT APPEALED FROM:	[2020] VCC 1193 (Judge Mullaly)

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CRIMINAL LAW – Appeal – Conviction and sentence – Sexual penetration of a child under 16 – Indecent act with or in the presence of a child under 16 – Substantial miscarriage of justice – Whether conviction was unreasonable or cannot be supported having regard to the evidence – Whether inconsistencies and improbabilities in prosecution case individually or in combination made jury’s verdict unreasonable – Credibility of independent witness had no impact on credibility of complainant – Evidence ruled inadmissible in previous trial led in retrial – Leading of inadmissible evidence amounted to error or irregularity which may have made a difference to outcome of trial – Crimes Act 1958 ss 45(1), 47(1), Criminal Procedure Act 2009 s 276(1)(a)–(b); M v The Queen (1994) 181 CLR 487, Pell v The Queen (2020) 268 CLR 123, Baini v The Queen (2012) 246 CLR 469 applied – Unnecessary to consider application for leave to appeal against sentence – Leave to appeal against conviction granted – Appeal against conviction allowed – Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Tehan QC, with Ms S Lenthall	Slades & Parsons Solicitors
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
T FORREST JA
MACAULAY AJA:

On 11 November 2019 a jury convicted the applicant of two charges of sexual penetration of a child under 16 and a charge of committing an indecent act with, or in the presence of, a child under 16.

On 6 August 2020 the applicant was sentenced as follows:

Charge Offence Maximum Sentence Cumulation

1 Sexual penetration of a child under 16[1] 25 years 8 years 3 years

2 Indecent act with or in the presence of a child under 16[2] 10 years 18 months 3 months

3 Sexual penetration of a child under 16 25 years 9 years Base

Total effective sentence: 12 years and 3 months’ imprisonment

Non-parole period: 9 years

Other relevant orders: sentenced as a serious sexual offender on charge 3, Sex Offenders Registration reporting for life
[1]Contrary to the Crimes Act 1958 s 45(1).
[2]Contrary to ibid s 47(1).

The applicant seeks leave to appeal against conviction and sentence. His grounds of appeal against conviction are:

1.The learned trial judge erred in failing to adjourn the trial because of the unfitness of the applicant to stand trial.
2.The learned trial judge erred in failing to have the swearing of the intermediary in the presence of the jury.
3.The learned trial judge erred in failing to give the jury a direction upon penetration.
4.The learned trial judge erred in failing to give the jury a forensic…

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 Hill v The Queen

Details

AGLC: Hill v The Queen [2021] VSCA 316
Case: [2021] VSCA 316
Decision Date: 18 November 2021

CaseChat Overview and Summary

The appellant, Hill, was convicted by a jury of sexually penetrating a child under 16 years of age and committing an indecent act with or in the presence of a child under 16 years of age. The conviction was quashed by the Court of Appeal of the Supreme Court of Victoria and a retrial ordered. The Queen appealed against the decision of the Court of Appeal to the High Court. The central issue for the High Court was whether the Court of Appeal erred in concluding that a substantial miscarriage of justice had occurred. The Court was required to determine whether the conviction was unreasonable or could not be supported by the evidence, considering inconsistencies and improbabilities in the prosecution case. Additionally, the Court had to assess whether the credibility of an independent witness affected the credibility of the complainant and whether the admission of inadmissible evidence in the retrial amounted to an error or irregularity that could have influenced the outcome of the trial.

The Court of Appeal had found that the conviction was unreasonable due to the inadmissible evidence and other inconsistencies in the prosecution's case. The High Court held that the Court of Appeal had not erred in its decision. The evidence of the independent witness did not impact the credibility of the complainant's evidence. Furthermore, the admission of inadmissible evidence in the retrial was an error or irregularity that may have made a difference to the outcome of the trial. The Court found that this error, in conjunction with other inconsistencies in the prosecution's case, rendered the conviction unreasonable. The Court held that a substantial miscarriage of justice had occurred, and therefore, the appeal against the conviction was allowed. The High Court granted leave to appeal against the conviction, allowed the appeal, and ordered a retrial.

No further orders were made regarding the sentence.

Orders