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Irwin v The King

Irwin v The King

Case [2022] VSCA 218 14 October 2022

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0160

MARK IRWIN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST AP, SIFRIS and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2022
DATE OF JUDGMENT:	14 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 218
JUDGMENT APPEALED FROM:	DPP v Irwin (Unreported, County Court of Victoria, 25 June 2021, Judge M P Bourke) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 16 – Indecent act with child under 16 – Whether prosecutor’s final address occasioned a substantial miscarriage of justice – Defence denied leave to cross-examine complainant as to sexual activities – Sexual activities may have provided alternative explanation for complainant’s knowledge of location of charged acts – Prosecutor emphasised lack of alternative explanation in closing address – Closing address unfair in light of denial of leave to cross-examine – Appeal allowed – Re-trial ordered.

CRIMINAL LAW – Appeal – Conviction – Whether verdicts unreasonable or cannot be supported by the evidence – Whether various factual inconsistencies such that jury ought to have entertained reasonable doubt – Verdicts open to the jury.

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Counsel
Applicant:		Mr D Dann KC with Dr M Fitzgerald
Respondent:		Ms K Hamill
Solicitors
Applicant:	Doogue + George
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP
SIFRIS JA
WALKER JA:

Introduction

Following a trial before a jury in the County Court, on 25 June 2021 the applicant was convicted of one charge of indecent act with a child under 16 and two charges of sexual penetration of a child under 16.[1]
[1]On 12 October 2021, the trial judge imposed a total effective sentence of 5 years and 6 months’ imprisonment on the applicant, with a non-parole period of 3 years and 6 months.
The applicant now seeks leave to appeal his conviction on three proposed grounds of appeal:[2]
Ground 1: A substantial miscarriage of justice has occurred as a result of the inability of the Applicant’s trial Counsel to explore evidence of the Complainant’s sexual history.
Ground 2: The guilty verdicts of the jury are unsafe and unsatisfactory.
Ground 3: A substantial miscarriage of justice has occurred by virtue of the learned prosecutor advancing submissions in his final address as to:
(a)the explanation for the complainant engaging in the alleged sexual activity the subject of the second toilet block incident; and
(b)how the complainant was able to connect the applicant with the toilet block the subject of both of the alleged toilet block incidents;
in circumstances where the applicant had been prevented from cross-examining the complainant as to particular aspects of his sexual history.[3]
[2]For convenience, the proposed grounds of appeal are referred to in our reasons as grounds of appeal.
[3]Leave was granted to add ground 3 during the hearing in this Court.
In our opinion, ground 3 is made out. Ground 2 is not made out and we have not considered it necessary to deal with ground 1. Leave to appeal will be granted,…

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 Irwin v The King

Details

AGLC: Irwin v The King [2022] VSCA 218
Case: [2022] VSCA 218
Decision Date: 14 October 2022

CaseChat Overview and Summary

The case of Irwin v The King involved an appeal by the defendant against his conviction for sexual penetration of a child under 16 and indecent acts with a child under 16. The trial was held in a superior court of Australia, and the appeal was brought before a higher appellate court. The central issue in the appeal was whether the prosecutor’s final address to the jury had led to a substantial miscarriage of justice. The court had to determine if the prosecutor’s remarks were unfair given that the defence had been denied leave to cross-examine the complainant about her sexual activities, which could have provided an alternative explanation for her knowledge of the location where the charged acts occurred. The appeal also questioned whether the verdicts were unreasonable or unsupported by the evidence, and whether there were inconsistencies in the evidence that should have led the jury to entertain a reasonable doubt.

The appellate court examined the closing address given by the prosecutor and noted that it emphasised the lack of an alternative explanation for the complainant's knowledge of the location of the charged acts. The court considered this emphasis to be unfair in light of the denial of leave to cross-examine the complainant on her sexual activities, which might have offered a plausible alternative explanation. The court found that the prosecutor’s address likely influenced the jury unfairly, leading to a substantial miscarriage of justice. Additionally, the court reviewed the evidence and determined that the verdicts were open to the jury and could be supported by the evidence presented. The court found no basis to conclude that the verdicts were unreasonable or unsupported by the evidence.

The appellate court allowed the appeal and ordered a re-trial, acknowledging the unfairness in the prosecutor’s final address and its potential impact on the jury's decision-making process. The court did not find the evidence to be so inconsistent as to necessitate a reasonable doubt in the minds of the jury. The final orders of the court included the quashing of the defendant's convictions and the ordering of a new trial to ensure a fair judicial process.

Orders