Milliken v The Queen - [2010] VSCA 243

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0987

DANIEL PETER MILLIKEN

THE QUEEN

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JUDGES:	ASHLEY, REDLICH and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2010
DATE OF JUDGMENT:	12 October 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 243
JUDGMENT APPEALED FROM:	R v Milliken (Unreported, County Court of Victoria at Geelong, Judge Nixon, 16 December 2008 (conviction))

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Criminal law – Conviction – Sexual penetration with a child under the age of ten years – Indecent assault – Whether verdicts unsafe and unsatisfactory – Inconsistencies between complainant’s evidence and evidence called by defence – Whether verdict on counts of rape and sexual penetration inconsistent – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M D Stanton	Victoria Legal Aid
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

The applicant, Daniel Peter Milliken, a man now aged 42, was found guilty on 16 December 2008[1] of 4 counts of sexual penetration with a child under the age of ten years and 3 counts of indecent assault. The offences of which he was found guilty were committed on three occasions, not long apart, in the period between January 1984 and December 1985. The applicant was then aged between 15 and 17, whilst the complainant was aged between 7 and 9. On 18 December 2008, the applicant was sentenced to a total effective sentence of three years' imprisonment. The sentencing judge ordered that the sentence be wholly suspended for a period of three years.
[1]This was the applicant’s second trial. An earlier jury was discharged after it was unable to reach a verdict.

The applicant now seeks leave to appeal against conviction on the following grounds:

1.The verdicts are unsafe and unsatisfactory, particularly having regard to the inconsistencies between the complainant’s evidence and the evidence called by the defence.
2.The verdicts to counts 3 and 4 are inconsistent having regard to the evidence and the manner in which the trial was conducted by the prosecution and the defence.

Circumstances of the offending

The offences of which the applicant was found guilty were committed at Beech Forest where the applicant, with his brother, lived in a bungalow at the back of his parents’ home. The single complainant lived with his parents at Gellibrand.

The complainant used to visit Beech Forest with his parents. The applicant’s father was his uncle. The boys’ parents used to have drinks together at the Beech Forest Hotel. The complainant and his parents would occasionally stay overnight at the Beech Forest home of the applicant’s parents. On such occasions, the complainant would sleep in the bungalow.

The complainant’s evidence was as follows: on the occasion of first offending, the applicant and the complainant were on their own in the bungalow. The applicant grabbed the complainant’s hand, put it on his penis, and had the complainant masturbate him (count 1, indecent assault). After a while, he asked the complainant to perform oral sex…

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 Milliken v The Queen

Details

AGLC: Milliken v The Queen [2010] VSCA 243
Case: [2010] VSCA 243
Decision Date: 12 October 2010

CaseChat Overview and Summary

Milliken was convicted of sexual penetration with a child under the age of ten years, as well as indecent assault. The case reached the court on the basis of an application to set aside the verdicts as being unsafe and unsatisfactory, with contentions that there were inconsistencies between the evidence provided by the complainant and the evidence called by the defence. The appellant further argued that the verdicts on counts of rape and sexual penetration were inconsistent. The court was tasked with determining whether these inconsistencies were significant enough to warrant setting aside the verdicts.

The court examined the inconsistencies in the complainant’s evidence and the defence evidence, focusing on whether these discrepancies were material and could have affected the safety and satisfaction of the verdicts. The court held that the inconsistencies did not undermine the overall reliability of the evidence or the safety of the verdicts. The court emphasised that it was within the jury's province to assess the credibility of the evidence and to resolve any inconsistencies. The inconsistencies alone did not justify setting aside the verdicts.

Ultimately, the court found that the verdicts were safe and satisfactory, and dismissed the appeal. The court held that the jury was entitled to accept the complainant's evidence and to reject the defence's evidence, even in the presence of some inconsistencies. The appeal was dismissed, and the convictions were upheld. The court did not find any basis to interfere with the jury's assessment of the evidence or its findings.

Orders