Leland Kenneth Patrick[1] v The Queen - [2014] VSCA 89

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0066

LELAND KENNETH PATRICK[1]	Appellant
	v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

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JUDGES	NEAVE and TATE JJA and SIFRIS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 February 2014
DATE OF JUDGMENT	14 May 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 89
JUDGMENT APPEALED FROM	DPP v Patrick (a pseudonym) (County Court of Victoria, 15 March 2013, Judge Maidment)

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EVIDENCE – Appeal against conviction – Six charges of indecent assault and one charge of gross indecency – Appellant sentenced to six years and three months imprisonment with a non‑parole period of four years – Accused apologised to complainant ‘for the things I have done’ – Whether the complainant’s perception of what the accused was referring to when he made that apology could be characterised as opinion evidence – Trial judge erred in admitting evidence as to the complainant’s perception of what the accused meant when apologising because her perception added no more to the evidence than the words of the apology itself – No miscarriage of justice because the trial judge directed the jury that they could only rely on the admission if they were satisfied that it was an admission of sexual abuse – Appeal dismissed – Evidence Act 2008 (Vic) s 66A, 78 – Lithgow City Council v Jackson (2011) 244 CLR 352, Smith v The Queen (2001) 206 CLR 650.

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APPEARANCES:	COUNSEL	SOLICITORS
The Appellant	Mr T Alexander with Mr H Kirimof	Paul Vale Criminal Law
The Respondent	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
TATE JA
SIFRIS AJA:

This is an appeal against conviction by the appellant, Leland Kenneth Patrick (a pseudonym), who was convicted by a jury in the County Court of six charges of indecent assault and one charge of gross indecency.[2] On 15 March 2013, he was sentenced as follows:
[2]He was indicted on 15 charges. The jury returned verdicts of guilty on seven charges and of not guilty on eight other charges, having been directed to return verdicts of not guilty on two of these charges.

Charge on Indictment Offence Maximum Sentence Cumulation

2 Indecent Assault [Crimes Act 1958 (Vic) s 44(1)] 5 years
[Crimes Act 1958 (Vic) s 44(1)] 16 months 2 months

3 Indecent Assault 5 years 20 months 4 months

4 Indecent Assault 5 years 20 months 14 months

10 Indecent Assault 5 years 20 months 15 months

11 Gross Indecency [Crimes Act 1958 (Vic) s 50(1)] 2 years
[Crimes Act 1958 (Vic) s 50(1)] 8 months 4 months

12 Indecent Assault 5 years 30 months Base

14 Indecent Assault 5 years 30 months 6 months

Total Effective Sentence: 6 years 3 months

Non-Parole Period: 4 years

Pre-sentence Detention Declared: 164 days

6AAA…

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.

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Details

Case: [2014] VSCA 89
Decision Date: 14 May 2014

CaseChat Overview and Summary

The appellant, Leland Kenneth Patrick, appealed against his conviction on six charges of indecent assault and one charge of gross indecency. The appeal was heard in the High Court of Australia. The primary issue was whether the trial judge erred in admitting evidence of the complainant's perception of the meaning of the appellant's apology. The complainant interpreted the apology as an admission of guilt for sexual abuse, but the appellant argued that this was an opinion that did not add any value to the words of the apology itself.

The court considered whether the complainant's perception of the meaning of the apology could be admitted as evidence. The court noted that the complainant's interpretation of the apology was an opinion, and that such opinions are generally not admissible as evidence under section 78 of the Evidence Act 2008 (Vic). However, the court also noted that the trial judge had directed the jury that they could only rely on the admission if they were satisfied that it was an admission of sexual abuse. The court found that while the trial judge had erred in admitting the evidence, this did not result in a miscarriage of justice because the jury had been properly directed on how to consider the evidence.

The court dismissed the appeal, holding that the error in admitting the evidence did not result in a miscarriage of justice. The court found that the evidence did not add any value to the words of the apology itself, and that the trial judge had properly directed the jury on how to consider the evidence. The court held that the error was not such as to undermine confidence in the outcome of the trial. The appeal was therefore dismissed, and the conviction and sentence of six years and three months imprisonment with a non-parole period of four years was upheld.

Orders