Mathis (a Pseudonym) v The Queen - [2014] VSCA 118

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0185

BRIAN MATHIS (A PSEUDONYM)[1]
	v
THE QUEEN

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	MAXWELL ACJ, NEAVE JA and KYROU AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 May 2014
DATE OF JUDGMENT:	16 June 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 118
JUDGMENT APPEALED FROM:	DPP v [Mathis] (Unreported, County Court of Victoria, Judge Gucciardo, 4 September 2013) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Incest, indecent act with child under 16 – Applicant was stepfather of victim – Victim’s mother gave evidence for prosecution – Evidence led of statement by applicant that he needed to protect himself against false allegations – Evidence not objected to by defence – Defence case alleged fabrication of allegations – Rational forensic decision not to object – No miscarriage of justice.

CRIMINAL LAW – Appeal – Conviction – Incest, indecent act with child under 16 – Character evidence called by defence – Good character direction – Conventional ‘balancing direction’ that persons of good character can commit crimes — Judge referred to ‘scoutmasters [and] priests’ as examples – Whether comment diluted benefit of direction – Redirection sought and given – No miscarriage of justice.

CRIMINAL LAW – Trial – Evidence – Proof beyond reasonable doubt – Complainant said ‘I think’ penetration occurred – Whether capable of proving offence – Whether open to jury to be satisfied beyond reasonable doubt – Importance of context – Witness’s evidence to be assessed as a whole – Open to jury to be satisfied – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C T Carr	Marich Legal
For the Respondent	Mr C B Boyce	Mr C Hyland, Solicitor for Public Prosecutions

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MAXWELL ACJ:

After a trial in the County Court, the applicant was convicted of four counts of incest, two counts of indecent act with a child under 16 and one count of attempted incest. He was sentenced to a total effective sentence of eight years’ imprisonment, with a non-parole period of six years.

He now seeks leave to appeal against conviction. For reasons which follow, I would refuse leave to appeal.

Factual background

The complainant was the applicant’s stepdaughter, J. She is the daughter of P, who was the applicant’s de facto partner during the relevant period. The applicant had been in a relationship with P from the time that J was very small.

J and P lived with the applicant in his house. All of the alleged offending occurred at the house, while P was at work. J was aged between 10 and 15 at the time of the offending.

It is unnecessary for present purposes to detail J’s allegations. The defence case was that there had been no sexual contact of any kind. As will appear, J first…

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 Mathis (a Pseudonym) v The Queen

Details

AGLC: Mathis (a Pseudonym) v The Queen [2014] VSCA 118
Case: [2014] VSCA 118
Decision Date: 16 June 2014

CaseChat Overview and Summary

Mathis, whose identity is protected by a pseudonym, has appealed against his conviction for the crime of engaging in an indecent act with a child under the age of 16. The appeal was heard in a higher court in Australia, where the appellant argued various grounds for overturning his conviction. The primary dispute centres around the admissibility of certain evidence and the adequacy of the directions given by the trial judge to the jury.

The appeal raised two significant legal issues. Firstly, Mathis contended that the trial judge should not have allowed certain statements made by him to be admitted as evidence since they were not objected to by his defence at the trial. He argued that these statements, which suggested he needed to protect himself against false allegations, were prejudicial and led to a miscarriage of justice. Secondly, the appellant claimed that the trial judge’s direction to the jury about the relevance of his good character was inadequate and potentially prejudicial. The judge had provided a conventional direction, stating that people of good character could still commit crimes, and had used examples such as scoutmasters and priests. Mathis argued that these examples diluted the benefit of the direction and undermined his defence.

The higher court considered these issues and found that the trial judge's decision to admit the evidence was a rational one and did not result in a miscarriage of justice. The court held that the defence's strategic decision not to object to the evidence at trial was reasonable and should be respected. Regarding the character evidence direction, the court noted that the trial judge had provided a conventional balancing direction, which is appropriate in such cases. Although the examples used by the judge might not have been ideal, they did not prejudice the appellant's case to the extent of causing a miscarriage of justice. The court also found that the subsequent redirection to the jury adequately addressed any potential prejudice.

No orders were made by the higher court to alter the conviction or sentence. The appeal was dismissed, and Mathis's conviction was upheld.

Orders