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Martin v The Queen

Martin v The Queen

Case [2013] VSCA 377 17 December 2013

Appeal

Conviction

Reliability of Evidence

Inconsistent Verdicts

Grounds of Appeal

Sentence

Criminal Law

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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…

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 Martin v The Queen

Details

AGLC: Martin v The Queen [2013] VSCA 377
Case: [2013] VSCA 377
Decision Date: 17 December 2013

CaseChat Overview and Summary

Martin appealed against his conviction on six charges of incest involving a child aged between four and six years. The appeal was heard by the Victorian Court of Appeal. The primary legal issue was whether the evidence obtained from the child complainant through the VARE procedure was admissible and reliable. The court had to determine if the process was conducted appropriately and if the child's testimony was voluntary and untainted. Another issue was whether the trial judge erred in not excluding the child's answers obtained through this procedure. The court also considered whether the verdicts were unsafe and inconsistent and if the child's reliability required a warning to the jury.

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