Movel (a pseudonym) v The King

Case [2024] VSCA 183
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2024 0058
ROBERT MOVEL (A PSEUDONYM)[1] Applicant
v
THE KING Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES: PRIEST, NIALL and ORR JJA
WHEER HELD: Melbourne
DATE OF HEARING: 23 July 2024
DATE OF JUDGMENT: 26 August 2024
MEDIUM NEUTRAL CITATION: [2024] VSCA 183
JUDGMENT APPEALED FROM: DPP v Movel (a pseudonym) (County Court of Victoria, 23 November 2023, Judge Smallwood) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Sexual assault of a child under 16 – Whether substantial miscarriage of justice arising from judge’s comments when directing jury on evidence of child witnesses – Judge’s comments resulted in miscarriage of justice – Leave to appeal granted – Appeal allowed – New trial ordered.

CRIMINAL LAW – Appeal – Conviction – Sexual assault of a child under 16 – Whether verdicts of guilt unreasonable or cannot be supported having regard to evidence – Verdicts open to the jury.

CRIMINAL LAW – Appeal – Conviction – Sexual assault of a child under 16 – Whether judge erred in failing to direct jury as to potential unreliability of complainant’s evidence – Error not established.

CRIMINAL LAW – Appeal – Conviction – Sexual assault of a child under 16 – Whether judge erred in allowing jury access to recordings of VARE and special hearing – No irregularity in provision of recordings to jury.

CRIMINAL LAW – Appeal – Conviction – Sexual assault of a child under 16 – Whether judge misdirected the jury on factual matter – Error not established.

CRIMINAL LAW – Appeal – Conviction – Sexual assault of a child under 16 – Whether judge’s charge unbalanced – Error not established.

Criminal Procedure Act 2009, s 223; Jury Directions Act 2015, ss 32, 44N.

Bromley v The Queen (1986) 161 CLR 315; Butera v Director of Public Prosecutions (1987) 164 CLR 180; Carson (a pseudonym) v The Queen [2019] VSCA 317; Danny v The Queen [2020] VSCA 8; De Silva v The Queen (2019) 268 CLR 57; Flynn (a pseudonym) v The Queen [2020] VSCA 173; Gardner (a pseudonym) v The King [2024] VSCA 83; Gately v The Queen (2007) 232 CLR 208; McKell v The Queen (2019) 264 CLR 307; Pell v The Queen (2020) 268 CLR 123; R v NZ (2005) 63 NSWLR 628, considered.

R vBAH (2002) 5 VR 517; R v H [1999] 2 Qd R 283; R v Lewis (2002) 137 A Crim R 85, distinguished.

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Counsel
Applicant: Ms CA Boston SC with Mr P Coleridge
Respondent: Mr J O’Connor

Solicitors
Applicant: Dribbin & Brown Criminal Lawyers
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Introduction

  1. On 29 November 2023, a jury empanelled in the County Court to try him, found…

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Movel (a pseudonym) v The King [2024] VSCA 183
Case
[2024] VSCA 183
Decision Date

CaseChat Overview and Summary

The decision in Movel (a pseudonym) v The King involved an appeal against a conviction for the sexual assault of a child under 16 years of age. The case was heard in the Court of Appeal, where several grounds of appeal were raised, including the assertion that the judge's comments when directing the jury on the evidence of child witnesses resulted in a miscarriage of justice. The court was tasked with determining whether the judge's comments had indeed caused a miscarriage of justice, whether the verdicts of guilt were unreasonable or unsupported by the evidence, and if there were any errors in the judge's direction to the jury, particularly regarding the reliability of the complainant's evidence.

The court examined each ground of appeal in detail. It found that the judge's comments, which were made when directing the jury on the evidence of child witnesses, constituted an irregularity that led to a miscarriage of justice. Despite this, the court concluded that the verdicts of guilt were open to the jury based on the evidence presented. The court also found that no error was established in the judge's direction to the jury regarding the potential unreliability of the complainant's evidence. Additionally, the court ruled that there was no irregularity in providing the jury with access to recordings of the victim's audio-recorded evidence and special hearing, as these were permitted under the Criminal Procedure Act 2009.

Ultimately, the Court of Appeal allowed the appeal on the basis of the identified irregularity, which led to the ordering of a new trial. The court did not find it appropriate to order an acquittal but left the decision on whether to proceed with a retrial to the Director of Public Prosecutions. The court acknowledged that while the sentence had been substantially served, the matter of a retrial involved considerations best left to the Director of Public Prosecutions. The final orders included allowing the appeal and directing a re-trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I also pause to note that, at the time of the applicant’s trial, ss 223(1) and (2) of the CPA relevantly provided:223 Jury documents relating to trial issues and evidence (1) For the purpose of helping the jury to understand the issues or the evidence, the trial judge may order, at any time during the trial, that copies of any of the following are to be given to the jury in any form that the trial judge considers appropriate— (a) the indictment; … (ha) the transcript of the evidence in the trial; (i) transcripts of evidence or audio or audiovisual recordings of evidence; (j) transcripts of any audio or audiovisual recordings; … (l) any other document that the trial judge considers appropriate. … (2) The trial judge may specify in an order under subsection (1) when any material is to be given to the jury. I pause further to note the similarities (and dissimilarities) between s 19 of the repealed Act, and s 223 of the CPA: · First, both sections import a discretion. Hence the judge ‘may order’ that copies of any items in the ‘material’ enumerated ‘shall’ (s 19(1)) or ‘are to’ (s 223(1)) ‘be given to the jury in any form that the trial judge considers appropriate’. · Secondly, s 19(1) permitted the enumerated material to be given to the jury ‘[f]or the purpose of helping the jury to understand the issues’, whereas s 223(1) permits the material to be given to the jury ‘[f]or the purpose of helping the jury to understand the issues or the evidence’. · Thirdly, s 19(1) specifically provided that the trial judge might make the order that the material be provided to the jury ‘on the application of a party or of his or her own motion’, whereas s 223(1) simply provides that the material may be provided ‘at any time during the trial’, without providing that the relevant order be made on the application of a party or on the judge’s own motion. · Fourthly, s 19(1) included in the material that ‘shall be given to the jury in any form that the trial judge considers appropriate’, ‘(i) transcripts of evidence;’ and ‘(j) transcripts of any audio or audio visual recordings’; whereas s 223(1) includes among the items that ‘are to be given to the jury in any form that the trial judge considers appropriate’, ‘(ha) the transcript of the evidence in the trial’, ‘(i) transcripts of evidence or audio or audiovisual recordings of evidence’; and ‘(j) transcripts of any audio or audiovisual recordings’.· Fifthly, both s 19(2) provided, and s 223(2) provides: ‘The trial judge may specify in an order under subsection (1) when any material is to be given to the jury’. As I have indicated, the complainant’s VARE was recorded on 27 November 2020. More than two years later, on 3 February 2023, she gave evidence at a special hearing before a judge of the County Court (being a judge other than the judge who ultimately conducted the applicant’s trial). On 22 November 2023, the applicant was arraigned, and a jury empanelled. The following day, 23 November 2023, the prosecution opened, and the defence responded. Later that day, the complainant’s VARE, and an audiovisual recording of her evidence given at the special hearing, were played to the jury. When they were played, the jury were not provided with a transcript of the VARE or special hearing (the trial judge expressing the view that it was ‘fairer’ to the applicant for the jury to be watching the witness when the recordings were ‘actually being played’). The VARE and the recording of the special hearing together became an exhibit marked for identification (‘Exhibit MFI A’).

Decision

Reasons for decision

In the circumstances, we are persuaded that this comment constituted an irregularity and, although we have rejected ground 1, a verdict of guilty was not inevitable and ground 5 should be upheld.Conclusion We joined in orders allowing this appeal solely on the basis of ground 5. In our opinion, this was not an appropriate case for the Court to order an acquittal. Whilst the sentence imposed had been substantially served, the question as to whether there should be a re-trial involves a number of considerations which are for the Director of Public Prosecutions to weigh. Much could be said for the view that a re-trial in these circumstances might not be justified, but ultimately that is a matter for the Director and not this Court. We ordered a re-trial.

Ratio Decidendi

Legal Principle Established

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