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LMD v The Queen

LMD v The Queen

Case [2012] VSCA 164 20 July 2012

Criminal Liability

Admissibility of Evidence

Judicial Review

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0109

LMD
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BONGIORNO, HARPER JJA and DAVIES AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 July 2012
DATE OF JUDGMENT:	20 July 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 164
JUDGMENT APPEALED FROM:	DPP v [LMD] (Unreported, County Court of Victoria, Judge Wood, 25 January 2012 (date of conviction))

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CRIMINAL LAW – Conviction – Indecent assault on a child under 16 and indecent act with a child under 16 – Whether trial judge erred in allowing evidence of complaints to go to the jury – Evidence Act 2008, s 66(2A) – Whether inconsistent verdicts led to a substantial miscarriage of justice – Whether jury speculated about the timing of one of the offences leading to a substantial miscarriage of justice − Whether jury verdict unreasonable or cannot be supported having regard to the evidence – Leave granted but appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T L Fitzpatrick	Rainer Martini & Associates
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

In this matter I will ask Harper JA to deliver the first judgment.

HARPER JA:

Unwanted sexual act behaviour is, unfortunately, an everyday occurrence. It ranges from the minor to the gross. Its effect on its victims is equally variable. Some might be thought by others to overreact to a non-threatening incident which, at worst, and according to one's view of these things, might by classified in poor taste. It is also true that the effect of unwanted, physical sexual contact not involving penetration is unpredictable, save that some victims of it will suffer very severely indeed. And in general it is not they, but the perpetrator who must shoulder the blame for the infliction of that suffering.

Another truth, of course, is that not all those who are accused have done anything wrong. Some accusations are false; some deliberately so, while others involve mistakes − such as mistakes of identity − which have innocently been made. And all accused are entitled to the presumption of innocence.

The difficulty of distinguishing fact or falsity is the sometimes very difficult task of the magistrate or the jury. The difficulty is often compounded when complaints about sexual misconduct are made years after the alleged offence by an infant who claims to be a victim, or by an adult who claims that he or she was a victim when a child.

The present appeal is one to which most of the considerations set out above have some relevance. The alleged victim is now an adult. The misconduct of which she complains happened, if it happened at all, very many years before she lodged a formal complaint to the police, many years before any informal complaint to the authorities was made, and years before the incidents upon which the prosecution now relies were first revealed to anyone at all. Moreover, there is no complaint 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 LMD v The Queen

Details

AGLC: LMD v The Queen [2012] VSCA 164
Case: [2012] VSCA 164
Decision Date: 20 July 2012

CaseChat Overview and Summary

LMD was convicted of indecent assault and an indecent act on a child under 16. The appeal against the conviction was heard in the High Court of Australia. The primary issue before the court was whether the trial judge erred in allowing evidence of complaints to go to the jury. The court also considered whether the inconsistent verdicts led to a substantial miscarriage of justice and whether the jury speculated about the timing of one of the offences leading to a substantial miscarriage of justice. Additionally, the court examined whether the jury verdict was unreasonable or could not be supported given the evidence.

The court found that there was no error in the trial judge's decision to allow the evidence of complaints to go to the jury, as it was relevant to the issue of consent and did not fall under the exclusionary provisions of the Evidence Act 2008, s 66(2A). The court also determined that the inconsistent verdicts did not lead to a substantial miscarriage of justice, as the jury's decision was based on the evidence presented and was not unreasonable or incapable of being supported. The court held that the jury's speculation about the timing of one of the offences did not lead to a substantial miscarriage of justice, as it did not affect the overall verdict.

The High Court dismissed the appeal against conviction, upholding the decision of the lower court. The court found that the jury's verdict was supported by the evidence and was not unreasonable. The court did not find any error in the trial judge's handling of the evidence or in the jury's consideration of the evidence. The appeal was dismissed, and the conviction was upheld.

Orders