Norman Porter (a pseudonym)[1] v The Queen - [2022] VSCA 177

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0178

NORMAN PORTER (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

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

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JUDGES:	KYROU, T FORREST and SIFRIS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2022
DATE OF JUDGMENT:	25 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 177
JUDGMENT APPEALED FROM:	[2021] VCC 1667 (Judge Gaynor) (Sentence)

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CRIMINAL LAW – Appeal – Conviction – One charge of carnal knowledge of girl under 10, one charge of incest – Whether verdicts unreasonable or could not be supported by the evidence – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Whether substantial miscarriage of justice occurred due to adduction of evidence of applicant’s violence and admissions – Whether substantial miscarriage of justice occurred due to exclusion of evidence concerning dimensions of bedroom in which offending allegedly occurred and evidence of applicant’s sister – Whether judge’s refusal to allow a view of bedroom resulted in substantial miscarriage of justice – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Whether substantial miscarriage of justice occurred due to judge’s interventions during trial and comments made in course of trial and charge – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Six years’ imprisonment for one charge of carnal knowledge of girl under 10 (charge 1) – Six years’ imprisonment for one charge of incest (charge 4) – Cumulation of 2 years for sentence for charge 1 – Total effective sentence 8 years’ imprisonment with non-parole period of 6 years – Whether judge erred in characterisation of charge in respect of which applicant was acquitted – Whether sentence manifestly excessive – Leave to appeal refused.

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Counsel
Applicant:		Mr JR Sutton
Respondent:		Ms E Ruddle QC with Mr G Buchhorn
Solicitors
Applicant:	Borchard & Moore
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction and summary

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

Overview of the prosecution case at trial

Ground 1: Are verdicts for charges 1, 4 unreasonable or unsupported by evidence?

Principles relating to ground 1

Evidence relevant to charges 1 and 4

Applicant’s submissions on ground 1 and the Court’s decision on that ground

Ground 2: Admission of evidence of violence, admissions and PTSD

The impugned evidence

Applicant’s submissions on ground 2 and the Court’s decision on that ground

Grounds 3 and 5: Exclusion of evidence and the judge’s refusal to allow a view

The evidence the subject of grounds 3 and 5

Ground 4: Exclusion of evidence of Ms Martin

Ground 6: Judge’s comments in the course of the trial and her charge

Legal principles relevant to ground 6

Impugned comments of judge

Parties’ submissions on ground 6 and the Court’s decision on that ground

Conclusion in relation to the application…

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.

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Details

Case: [2022] VSCA 177
Decision Date: 25 August 2022

CaseChat Overview and Summary

Norman Porter, also known by a pseudonym, brought an appeal against his conviction and sentence in the Supreme Court of Victoria. Porter was convicted of one charge of carnal knowledge of a girl under the age of 10 and one charge of incest. He sought to challenge the verdicts on the grounds that they were unreasonable or not supported by the evidence. Additionally, Porter argued that the trial judge's refusal to allow the jury to view the bedroom where the alleged offences took place, and the exclusion of certain evidence, resulted in a substantial miscarriage of justice. Porter also argued that the judge's interventions during the trial and comments made in the course of the trial and charge constituted a substantial miscarriage of justice. Finally, Porter challenged the sentence, arguing that the trial judge erred in characterising one of the charges in respect of which he was acquitted and that the sentence was manifestly excessive.

The primary legal issues before the court were whether the verdicts were unreasonable or not supported by the evidence, and whether the exclusion of certain evidence and the judge's refusal to allow the jury to view the bedroom resulted in a substantial miscarriage of justice. The court also needed to determine whether the judge's interventions during the trial and comments made in the course of the trial and charge constituted a substantial miscarriage of justice. Finally, the court had to consider whether the trial judge erred in characterising one of the charges in respect of which Porter was acquitted and whether the sentence was manifestly excessive.

The court held that there was no basis for concluding that the verdicts were unreasonable or not supported by the evidence. The court also found that the exclusion of certain evidence and the judge's refusal to allow the jury to view the bedroom did not result in a substantial miscarriage of justice. The court held that the judge's interventions during the trial and comments made in the course of the trial and charge did not constitute a substantial miscarriage of justice. Finally, the court held that the trial judge did not err in characterising one of the charges in respect of which Porter was acquitted and that the sentence was not manifestly excessive. Accordingly, the appeal was dismissed, and the conviction and sentence were upheld.

The final orders of the court were that leave to appeal was refused, and the conviction and sentence were upheld.

Orders