Martin v The Queen

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.