James v The King

[2023] VSCA 34

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0159

PETER JAMES (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of the victim of the alleged sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant, the complainant and other witnesses.

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JUDGES:	EMERTON P, KYROU and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2023
DATE OF JUDGMENT:	2 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 34
JUDGMENT APPEALED FROM:	[2022] VCC 1176 (Judge M Bourke)

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CRIMINAL LAW – Appeal – Conviction – Two charges of sexual activity in presence of child under 16 (charges 2, 6) – Intermediary not sworn as required by s 389K(4) of Criminal Procedure Act 2009 – Whether irregularity in proceeding resulting in substantial miscarriage of justice – No substantial miscarriage of justice.

CRIMINAL LAW – Appeal – Conviction – Inconsistencies between complainant’s visual audio recorded evidence (VARE) and evidence at special hearing – Conviction not reasonable or not supported having regard to evidence in relation to charge 2 but not charge 6 – Leave to appeal granted and appeal allowed – Conviction set aside and judgment of acquittal entered for charge 2 – Sentence of 16 months’ imprisonment for charge 6 set aside – Appellant resentenced to time served (265 days) for charge 6.

Criminal Procedure Act 2009 ss 276(1), 389F–389K; Evidence Act 2008 ss 21, 22, 30, sch 1; Criminal Procedure Regulations 2009 reg 21, sch 1; Juries Act 2000 sch 3.

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, M v The Queen (1994) 181 CLR 487 applied; Awad v The Queen (2022) 405 ALR 589, Baini v The Queen (2012) 246 CLR 469 considered.

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Counsel
Applicant:		Mr PJ Smallwood with Mr M Weinman
Respondent:		Ms DI Piekusis KC
Solicitors
Applicant:	Chris McLennan & Co
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

F5 dec

TABLE OF CONTENTS

Introduction and summary

Extension of time application

Overview of prosecution and defence cases

Ground 1: Effect of intermediary not being sworn

Statutory provisions relevant to ground 1

Legal principles relevant to ground 1

Facts relevant to ground 1

Parties’ submissions on ground 1

Decision on ground 1

Grounds 2 and 3: Adequacy of evidence for charges 2 and 6

Statutory provisions and legal principles relevant to grounds 2 and 3

Complainant’s evidence relevant to charges 2 and 6

Other prosecution evidence relevant to charge 6

Defence evidence relevant to charges 2 and 6

Parties’ submissions on grounds 2 and 3

Decision on grounds 2 and 3

Conclusion and resentence

EMERTON P

KYROU JA

KAYE JA:

Introduction and summary

1. On 12 May 2022, the applicant was convicted by a County Court jury of two charges of sexual activity in the presence of a child under 16 (charges 2 and 6).[2] The victim of his alleged offending was his stepdaughter, Leyla James.[3] He was…