SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0199 | |
| DANIEL MARTIN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, NEAVE and REDLICH JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 1 August 2013 | |
| DATE OF JUDGMENT | 17 December 2013 | |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 377 | |
| JUDGMENT APPEALED FROM | DPP v Martin (Unreported, County Court of Victoria, Judge Lacava, 13 July 2012) | |
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CRIMINAL LAW – Appeal – Conviction – Six charges of incest of child between ages of four and six years – Evidence – VARE procedure – Division 5 of Part 8.2 Criminal Procedure Act 2009 – Leading questions – Role of interview process in investigation – Need to substantiate allegations and exhaust memory – Whether allegations voluntary or prompted – Whether procedure contaminated – Offender unable to object to procedure – Overriding duty of trial judge to ensure fair trial – Whether answers should be excluded at trial – Power to exclude – Sections 368, 374 and 381 – Whether complainant understood meaning of truth – Inconsistent verdicts – Inappropriate particular of ground that verdicts unsafe – Whether verdicts unsafe – Reliability of child complainant – R v Knigge (2003) 6 VR 181, R v NRC (1999) 3 VR 537; R v HRA (2008) 183 A Crim R 91; SLJ v The Queen [2013] VSCA 193; Douglass v The Queen (2012) 86 ALJR 1086 considered.
EVIDENCE – Child witness – Reliability – Whether particular circumstances of child complainant required warning as to reliability – No request for warning – Evidence Act 2009 s 165A.
CRIMINAL LAW – Ground of appeal asserting incompetence of defence counsel – Need to establish profound and flagrantly indefensible error not residing in logic or forensic purpose and of such importance as to give rise to miscarriage of justice – R v Birks (1990) 19 NSWLR 677, Naidu v The Queen (2011) 31 VR 212 considered.
CRIMINAL LAW – Sentence – Imprisonment for term of five years with non-parole period of three years and four months not manifestly excessive.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr A S Dickenson | Mike Wardell |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the considerable advantage of reading in draft the reasons for judgment of Redlich JA. For the reasons given by his Honour, I too would refuse both applications.
NEAVE JA:
I agree with Redlich JA, for the reasons that he gives, that leave to appeal against both conviction and sentence should be refused. I wish only to add the following.
Section 367 of the Criminal Procedure Act 2009 (Vic) permits a child or cognitively impaired witness to give their evidence in chief in the form of a VARE.[1] This provision enables a complaint to be recorded shortly after it is made and gives a jury the opportunity to observe both the way the child described the offending and the conduct of the interviewing officer. This may result in…
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- AGLC
- Martin v The Queen [2013] VSCA 377
- Case
- [2013] VSCA 377
- Decision Date
CaseChat Overview and Summary
The court examined the VARE procedure under Division 5 of Part 8.2 of the Criminal Procedure Act 2009 and found that it was designed to facilitate the investigation by allowing leading questions to be asked in a child-friendly manner. The court held that the procedure did not inherently contaminate the evidence, as it was necessary to substantiate allegations and exhaust the child's memory. The court concluded that the trial judge did not err in admitting the evidence, and there was no need to exclude the child's answers at trial. Regarding the child's understanding of truth, the court found no requirement for a warning under Evidence Act 2009 s 165A, as no such request was made. The reliability of the child's testimony was assessed in light of the specific circumstances, and the court found no basis to conclude that the verdicts were unsafe or inconsistent.
The court also dismissed the ground of appeal asserting incompetence of defence counsel, finding no profound and flagrantly indefensible error that would give rise to a miscarriage of justice. The sentence imposed was considered not manifestly excessive, and therefore, the appeal was dismissed. The final orders confirmed the conviction and sentence, with no orders for a new trial or retrial.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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