Matthew Clark (a pseudonym) v The Queen - [2015] VSCA 297

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0142

MATTHEW CLARK (A PSEUDONYM)	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, PRIEST and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2015
DATE OF JUDGMENT:	17 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 297
JUDGMENT APPEALED FROM:	DPP v [Clark] (County Court of Victoria, Judge Coish, 22 June 2015)

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CRIMINAL LAW – Appeal – Conviction – Indecent act with child under 16 (4 charges) – Tendency evidence – Admission – Whether significant probative value – Danger of unfair prejudice – Prejudice because of lapse of time – Whether judge applied statutory test – Cross-examination of victim about hostility to accused – Whether answers gave rise to unfair prejudice – Whether directions adequate – Whether defence deprived of reasonable opportunity to cross-examine prosecution witness – Application refused – Evidence Act 2008 ss 97, 101, 137.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Gillespie-Jones with Ms E McKinnon	McNamaras Lawyers
For the Crown	Ms D Piekusis	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P
PRIEST JA
KAYE JA:

The applicant was found guilty by the jury, empanelled on his trial, of four charges of committing an indecent act with his former partner’s daughter, R, who was then under 16 years of age, during the period January 1977 to January 1981. He was also acquitted by the same jury of four other charges of indecent assault relating to R. After a plea hearing, the applicant was sentenced to a total effective term of three years’ imprisonment, with a non-parole period of 18 months. The applicant seeks leave to appeal from his conviction on those charges.

The applicant was originally the subject of a 12 charge presentment, consisting of nine counts, relating to the complainant R, and three counts relating to R’s younger sister, B. In January 2014, a judge of the County Court ordered the permanent stay of the 12 charge presentment. The DPP successfully appealed against that decision, but the Court of Appeal permanently stayed count 1 of that presentment.[1] In September 2014, the presentment was severed, so that the remaining charges, relating to each complainant, were the subject of a separate presentment and a separate trial.
[1]R v FJL (2014) 41 VR 572.

The trial, relating to the charges that are the subject of this application, concluded on 24 November 2014 with the pronouncement of the jury’s verdicts. There then followed three abortive trials relating to the second complainant B, including two trials in which the jury failed to reach its verdict. As a consequence, the DPP entered a notice of discontinuance of the presentment relating to the second complainant in April 2015.

Background

The applicant was born in 1948. In 1971, he commenced a relationship with K, who was the mother of R and B. They together lived at various addresses in the ensuing years, until the relationship between K and the applicant ceased in October 1981. During…

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 Matthew Clark (a pseudonym) v The Queen

Details

AGLC: Matthew Clark (a pseudonym) v The Queen [2015] VSCA 297
Case: [2015] VSCA 297
Decision Date: 17 November 2015

CaseChat Overview and Summary

The appellant, Matthew Clark, appealed against his conviction on four counts of indecent acts with a child under 16 years of age. The case was heard by the High Court of Australia. The primary issue was whether the trial judge correctly applied the statutory tests regarding the admissibility of tendency evidence and whether the judge’s handling of the cross-examination of the victim led to an unfair prejudice against the defence.

The court considered whether the trial judge had properly assessed the probative value and prejudicial effect of the evidence under sections 97 and 101 of the Evidence Act 2008. It examined if the judge appropriately balanced the probative value against the risk of unfair prejudice, especially given the passage of time between the alleged incidents and the trial. Furthermore, the court scrutinised the trial judge’s handling of the cross-examination of the victim, specifically the questions that elicited answers indicating hostility towards the accused, and whether this prejudiced the defence's opportunity to mount a fair defence.

The High Court concluded that the trial judge had correctly applied the statutory tests when admitting the evidence and handling the cross-examination. The court found that the probative value of the evidence outweighed any prejudicial effect, and the judge's directions to the jury were adequate to mitigate any potential prejudice. The court determined that the defence was not deprived of a reasonable opportunity to cross-examine the victim. Consequently, the appeal was dismissed.

Orders