Nenna (a pseudonym) v The Queen - [2021] VSCA 183

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0024

JAMES NENNA (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of any victim of sexual offending, this judgment has been anonymised by the adoption of pseudonyms and initials in place of the names of the applicant and witnesses.

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JUDGES:	BEACH, McLEISH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 June 2021
DATE OF JUDGMENT:	24 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 183
JUDGMENT APPEALED FROM:	[2019] VCC 1512 (Judge Hampel)

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CRIMINAL LAW – Conviction – Appeal – Applicant convicted of sexual offending against child – Judge’s charge – Comments made by judge in course of charge – Whether comments gave rise to substantial miscarriage of justice – Whether judge sufficiently identified statements as comment – Whether judge explained sufficiently that comments not binding – Whether judge’s use of terms ‘disclose’ and ‘disclosure’, instead of ‘complaint’, gave rise to substantial miscarriage of justice – Inappropriate comments giving rise to substantial miscarriage of justice – McKell v The Queen (2019) 264 CLR 307 referred to – Convictions not inevitable – Jury Directions Act 2015, ss 52 and 53 – Appeal allowed – Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis QC with Ms G F Connelly	James Dowsley & Associates
For the Respondent	Mr J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
McLEISH JA
T FORREST JA:

On 25 July 2019, following a nine day trial in the County Court, the applicant was found guilty of one charge of committing an indecent act with or in the presence of a child under 16 (charge 1) and three charges of incest (charges 2, 3 and 4). On 13 September 2019, following a plea hearing on 3 September 2019, the applicant was sentenced to a total effective sentence of 18 years, with a non-parole period of 14 years.[2]
[2]DPP v Nenna (a pseudonym) [2019] VCC 1512.

The applicant now seeks leave to appeal against conviction and sentence. His proposed grounds of appeal against conviction are as follows:

1.A substantial miscarriage of justice was occasioned by the trial judge’s directions or comments to the jury that:
(a)it is usual in cases such as the applicant’s that there are no eyewitnesses to any of the sexual acts;
(b)the absence of eyewitnesses in the applicant’s case was not a particularly remarkable or unusual factor.

2.A substantial miscarriage of justice was occasioned by the trial judge’s endorsement during her charge, of the complainant’s ‘courage’ in coming forth and disclosing her sexual abuse.
3.A substantial miscarriage of justice occurred as a result of:
(a)the judge’s adoption of the terms ‘disclosure’ and ‘disclose’ in preference to the terms ‘complaint’ and ‘complain’; and
(b)the judge’s alignment with the complainant.

In advancing the first two of his proposed grounds of appeal, the applicant placed considerable reliance upon the High Court’s decision in McKell v The Queen[3]…

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 Nenna (a pseudonym) v The Queen

Details

AGLC: Nenna (a pseudonym) v The Queen [2021] VSCA 183
Case: [2021] VSCA 183
Decision Date: 24 June 2021

CaseChat Overview and Summary

The appeal was heard by the High Court of Australia, involving a person referred to as Nenna, who was convicted of sexual offences against a child. The central issue was whether the trial judge's comments during the charge to the jury had caused a substantial miscarriage of justice. Specifically, the appeal focused on whether the judge had adequately identified certain statements as comments, clarified that these comments were not binding, and whether the use of the terms 'disclose' and 'disclosure' instead of 'complaint' created a substantial miscarriage of justice. The decision referenced McKell v The Queen, which emphasised the need to avoid inappropriate comments that could influence the jury's decision.

The court examined whether the judge's remarks had led to a substantial miscarriage of justice, assessing if they were sufficiently highlighted as non-binding comments and if the alternative terms used could have confused the jury. The High Court also considered whether the comments in question had an impact severe enough to warrant a retrial under the Jury Directions Act 2015. The court found that the judge's comments did indeed give rise to a substantial miscarriage of justice, as they did not meet the required standards for clarity and neutrality. The terms used and the failure to properly identify the comments as non-binding were significant factors in this determination.

Consequently, the appeal was successful, and the convictions were set aside. The High Court ordered a retrial, highlighting the importance of maintaining impartiality and clarity in judicial charges to safeguard the fairness of the trial process. This ruling underscored the necessity for judges to be meticulous in their language and explanations to avoid any undue influence on the jury. The decision reinforces the principle that a substantial miscarriage of justice may result from inappropriate comments, necessitating corrective action to uphold the integrity of the judicial system.

Orders