| 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…
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- AGLC
- McInnes v The Queen [2022] VSCA 188
- Case
- [2022] VSCA 188
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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