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Makeham v Sheppard

Makeham v Sheppard

Case [2020] VSCA 242 18 September 2020

Prior Inconsistent Statements

Administrative Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2019 0129

RICKY MAKEHAM

Applicant

NATHAN SHEPPARD

Respondent

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JUDGES:

PRIEST, KYROU and WEINBERG JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

10 September 2020

DATE OF JUDGMENT:

18 September 2020

MEDIUM NEUTRAL CITATION:

[2020] VSCA 242

JUDGMENT APPEALED FROM:

[2019] VSC 749 (John Dixon J)

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ADMINISTRATIVE LAW — Appeal on a question of law from Magistrates’ Court — Applicant convicted of indecent act with a child under 16 — Adequacy of magistrate’s reasons — Magistrate’s failure to deal with character evidence and prior inconsistent statements — Whether primary judge erred in failing to find magistrate’s reasons to be inadequate — Whether conviction unsafe and unsatisfactory — Appeal allowed — Charge remitted for rehearing before another magistrate — Criminal Procedure Act 2009 s 272 — Jury Directions Act 2015 s 4A — Perkins v The County Court of Victoria 2 VR 246; Ta v Thompson (2013) 46 VR 10; Betts v Hardcastle (2001) 23 WAR 559; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 considered.

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APPEARANCES:

Counsel

Solicitors

For the Applicant

Mr K McDonald

Berwick Legal

For the Respondent

Ms E Ruddle

Ms A Hogan, Solicitor for Public Prosecutions

Priest JA:

Introduction
1           Following a five day summary hearing in the Magistrates’ Court, Magistrate Bazzani convicted the applicant of committing an indecent act with a child under 16, and sentenced him to a community correction order of 18 months’ duration.
2 Unsatisfied with the magistrate’s decision, the applicant appealed to the Supreme Court on a question of law pursuant to s 272 of the Criminal Procedure Act 2009 (‘CPA’).
3           The primary judge heard the appeal on 3 October 2019, and dismissed it on 18 November 2019.
4           The applicant now seeks the leave of this Court to appeal against that decision on two grounds as follows:
1. The learned trial judge erred by holding the absence of an express path of reasoning demonstrating compliance by the magistrate with s 4A of the Jury Directions Act 2015 was not an error of law because the applicant had a right of appeal to the County Court.
2.        The learned trial judge erred by holding that the question whether a finding by the tribunal of fact was unreasonable or unable to be supported having regard to the evidence (the ‘unsafe or unsatisfactory’ ground) was a question of fact rather than a question of law.

5           For the reasons that follow, I would uphold the first ground and make orders accordingly.
Factual summary
6           So as to understand the issues raised by this application, it is necessary briefly to summarise the facts.
7           On 10 January 2018, the applicant was charged with committing an indecent act with ‘SB’, a child under 16. SB was a friend of the applicant’s daughter, ‘MA’.
8           The prosecution case was that SB, a 14 year old female, slept over at the applicant’s house on the evening of 4 to 5 March…

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 Makeham v Sheppard

Details

AGLC: Makeham v Sheppard [2020] VSCA 242
Case: [2020] VSCA 242
Decision Date: 18 September 2020

CaseChat Overview and Summary

The applicant, Makeham, sought leave to appeal against a conviction of an indecent act with a child under 16 years of age. The appeal was grounded on the basis that the magistrate's reasons for conviction were inadequate, specifically that the magistrate failed to address character evidence and prior inconsistent statements. The appeal was heard in the Magistrates’ Court of Western Australia.

The primary legal issue before the court was whether the magistrate's reasons for the conviction were adequate, particularly in light of the magistrate's failure to address certain evidence. The court had to determine whether this failure constituted a material error that rendered the conviction unsafe and unsatisfactory. The court was also required to assess if the primary judge erred in not finding the magistrate's reasons to be inadequate.

The court concluded that the magistrate's reasons for conviction were indeed inadequate due to the failure to address key pieces of evidence. The court found that this omission constituted a material error, leading to an unsafe and unsatisfactory conviction. Consequently, the appeal was allowed, and the charge was remitted for rehearing before another magistrate. The decision drew on precedents such as Perkins v The County Court of Victoria, Ta v Thompson, Betts v Hardcastle, and Soulemezis v Dudley (Holdings) Pty Ltd, which underscore the necessity for thorough and comprehensive reasons in judicial decisions.

The court ordered that the charge be remitted for rehearing before another magistrate, ensuring that all relevant evidence, including character evidence and prior inconsistent statements, is properly considered. This ensures the fairness and integrity of the judicial process.

Orders