McInnes v The Queen - [2022] VSCA 188

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0114

LUKE McINNES	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2022
DATE OF JUDGMENT:	30 August 2022
DATE OF REASONS:	2 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 188
JUDGMENT APPEALED FROM:	DPP v McInnes (Ruling No 2) [2022] VCC 1357 (Judge Riddell)

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CRIMINAL LAW – Appeal – Indictment containing multiple charges of rape and other offences – Two complainants – Appellant sought trial by judge alone – Prosecution did not oppose application – Appeal against refusal of application – Whether judge erred in the exercise of discretion – Leave to appeal granted – Appeal allowed – Trial by judge alone ordered.

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Counsel
Appellant:		Dr M Fitzgerald
Respondent:		Mr B Kissane QC with Mr N Batten
Solicitors
Appellant:	Doogue + George Defence Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

An indictment filed in the County Court charges the appellant with sexual and other offences against two adult female complainants, ‘LV’ and ‘CM’, with both of whom, at different times, he was in a domestic, sexual relationship.
The charges involving LV include a charge of common assault,[1] a charge of false imprisonment[2] and 10 charges of rape,[3] in a period between 1 November 2011 and 8 January 2014; and those involving CM include one charge of false imprisonment,[4] two charges of making a threat to kill,[5] three charges of indecent assault[6] and nine charges of rape,[7] in a period between 1 April 2014 and 30 June 2017.
[1]Charge 1.
[2]Charge 3.
[3]Charges 2, 4, 5, 6, 7, 8, 9, 10, 11 and 12.
[4]Charge 16.
[5]Charges 23 and 25.
[6]Charges 18, 19 and 20.
[7]Charges 13, 14, 15, 17, 21, 22, 24, 26 and 27.
Much of the sexual offending alleged against both complainants is said to have occurred in a ‘bondage’ setting, accompanied by the use of sex devices and restraints. The charges of rape include penile-vaginal, penile-anal and penile-oral penetration, together with vaginal ‘fisting’ and penetration of the vagina and anus with objects.
The appellant’s ‘defence’ may be gleaned from the first paragraph of the Defence Response to Summary of Prosecution Opening:
The accused denies the charges against him. He was in a relationship with each of the complainants in this matter and engaged in consensual sexual activity with them during the period covered by the indictment.
On 22 August 2022, the day that the matter was listed for a jury trial, counsel for the appellant sought an order under s 420E(1) of the Criminal Procedure Act 2009 (‘CPA’) that the charges in the indictment ‘be tried by the trial judge alone, without a jury’. The prosecution did not oppose the making of the order.
Notwithstanding that the prosecution did not oppose the making of the order, the judge refused it (‘the ruling’ or ‘the decision’).[8]
[8]DPP v McInnes (Ruling No 2) [2022] VCC 1357 (‘Reasons’).
Pursuant…

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 McInnes v The Queen

Details

AGLC: McInnes v The Queen [2022] VSCA 188
Case: [2022] VSCA 188
Decision Date: 30 August 2022

CaseChat Overview and Summary

In the matter of McInnes versus The Queen, the appellant, McInnes, faced multiple charges of rape and other offences. The case was heard in the High Court of Australia, with two complainants involved. The primary issue was whether the trial should proceed with a judge alone or a jury. The appellant had applied for a trial by judge alone, a request which the prosecution did not oppose.

The legal issue at the heart of this appeal was the discretionary power of the trial judge to order a trial by judge alone, even when the prosecution does not object. The court examined whether the trial judge had exercised this discretion correctly and whether there were any factors that should have led to a different decision. The appellant argued that the judge had erred in declining the application, while the respondent contended that the decision was correct.

The High Court found that the trial judge had indeed erred in not ordering a trial by judge alone. The court emphasised that the discretion to order such a trial should be exercised where it is appropriate to do so, and in this instance, the judge had not adequately considered the factors relevant to the exercise of that discretion. Consequently, the appeal was allowed, and the matter was remitted for a trial by judge alone. The court's decision highlighted the importance of the proper exercise of judicial discretion in such matters.

Orders