Matthams (a pseudonym) v The King - [2025] VSCA 44

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2023 0250
AARON MATTHAMS (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, WALKER and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2025
DATE OF JUDGMENT:	25 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 44
JUDGMENT APPEALED FROM:	DPP v Matthams (a pseudonym) (County Court of Victoria, Judge Syme, 14 July 2023) (conviction); [2023] VCC 2126 (Judge Syme) (sentence).

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CRIMINAL LAW – Appeal – Conviction – Alleged sexual offending against two children – Where informant gave evidence that there was no DNA evidence linking the applicant to the offending – Where prosecutor made remarks in closing address about potential for removal of DNA evidence – Where no expert evidence led about removal of DNA – Remarks went beyond evidence in trial and invited jury to speculate – Remarks not cured by prosecutor’s subsequent comments and judge’s directions – Substantial miscarriage of justice – Application for leave to appeal granted – Appeal allowed – Convictions set aside and retrial ordered.

CRIMINAL LAW – Appeal – Conviction – Whether jury verdict unreasonable – Where complainant unsure whether alleged touching intentional – Where applicant’s evidence was that no touching occurred at all – Jury rejected applicant’s case – Complainant could not give probative direct evidence about applicant’s state of mind – Open to jury to conclude beyond reasonable doubt that touching intentional.

R v Clune [No 2] [1996] 1 VR 1; R v Wright [1999] 3 VR 355; R v Baden-Clay (2016) 258 CLR 308, applied; R v Cahill [1998] 4 VR 1, discussed.

Counsel
Applicant:		Mr G Chisholm
Respondent:		Ms S Clancy
Solicitors
Applicant:	Stephen Peterson Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

I have had the considerable advantage of reading in draft the reasons of Walker JA. I agree with them and with the orders proposed.

WALKER JA:

In July 2023 the applicant was convicted of three offences involving two siblings, Lillian Holt and Patrick Holt.[1] The offending was alleged to have occurred on a single evening at the home the applicant shared with the children’s grandmother, Lucy Blackburn. The offending was as follows:
(a)sexual assault of a child under 16 years of age, constituted by touching Lillian Holt, who was 10 years old at the relevant time, on her buttocks (charge 1);[2]
(b)sexual penetration of a child under 12 years of age, constituted by penetrating Lillian Holt with his finger (charge 2);[3] and
(c)sexual assault of a child under 16 years of age, constituted by touching Patrick Holt, who was 12 years old at the relevant time, on his penis (charge 4).[4]
[1]Pseudonyms have been used in relation to all of the witnesses in order to protect the identity of the complainants.
[2]Contrary to s 49D of the Crimes Act 1958.
[3]Contrary to s 49A of the Crimes Act.
[4]Contrary to s 49D of the Crimes Act.
In the same trial, the applicant was acquitted of a…

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 Matthams (a pseudonym) v The King

Details

AGLC: Matthams (a pseudonym) v The King [2025] VSCA 44
Case: [2025] VSCA 44
Decision Date: 25 March 2025

CaseChat Overview and Summary

The matter before the Court was an appeal against a conviction for sexual offences against two children, with the appellant, identified as Matthams, contending that there had been a substantial miscarriage of justice. The trial had resulted in convictions on several counts of sexual offences, and the appeal was heard by the Court of Appeal. The appellant argued that the trial had been unfair due to several factors, including the lack of DNA evidence linking him to the offences, the prosecutor's comments about the potential removal of DNA evidence, and the uncertainty expressed by one of the complainants regarding the intentionality of the alleged touching.

The legal issues before the court involved whether the prosecutor's comments about the removal of DNA evidence constituted a miscarriage of justice, and whether the jury's verdict was unreasonable given the complainant's uncertainty about the intentionality of the alleged touching. The court had to determine if the prosecutor's comments, which went beyond the evidence presented and invited the jury to speculate, were prejudicial and led to a miscarriage of justice. Additionally, the court examined whether the jury's conclusion that the touching was intentional was reasonable, given the complainant's uncertainty and the lack of direct evidence about the appellant's state of mind.

The Court of Appeal found that the prosecutor's comments about the removal of DNA evidence, which were not supported by expert evidence, went beyond the evidence presented and invited the jury to speculate. These remarks were considered prejudicial and contributed to a miscarriage of justice. The court also noted that the remarks were not cured by the prosecutor's subsequent comments or the judge's directions to the jury. Furthermore, the court examined the reasonableness of the jury's verdict regarding the intentionality of the alleged touching. While one complainant was unsure whether the touching was intentional, the court concluded that it was open to the jury to find, beyond reasonable doubt, that the touching was intentional based on the evidence presented. Therefore, the court determined that the jury's verdict was not unreasonable.

The court granted the application for leave to appeal, allowed the appeal, set aside the convictions, and ordered a retrial. The substantial miscarriage of justice caused by the prosecutor's comments necessitated the setting aside of the convictions, while the jury's verdict on the intentionality of the touching was deemed reasonable, thus no further orders were made regarding that aspect of the appeal.

Orders