O'Reilly v The Queen - [2015] VSCA 19

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0260

AARON PAUL O’REILLY

Appellant

THE QUEEN

Respondent

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JUDGES:	WEINBERG, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 February 2015
DATE OF JUDGMENT:	16 February 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 19
JUDGMENT APPEALED FROM:	DPP v O’Reilly (Unreported, County Court of Victoria, Judge Mullaly, 22 November 2013)

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CRIMINAL LAW – Conviction – Five counts of sexual penetration of a child under the age of 16 – Offences allegedly committed between 1996 and 1998 – Crown case principally relied on evidence of complainant – Complainant’s evidence at special hearing not consistent with particulars of charges and version of events given during VARE – Whether verdicts unsafe and unsatisfactory – Appeal allowed – Verdicts of acquittal entered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Robert Davies
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
PRIEST JA
BEACH JA:

On 25 February 2013, the appellant was convicted by a jury in the County Court, at Melbourne, on five charges of taking part in an act of sexual penetration with a child under 16 years (‘the trial offences’). He was sentenced, on 22 November 2013, as follows:

Charge Offence Maximum Sentence Cumulation

1 Taking part in an act of sexual penetration with a child under 16
[Crimes Act 1958 (Vic) s 45(2)(a)] 25 years 5 years Base

2 Taking part in an act of sexual penetration with a child under 16
[Crimes Act 1958 (Vic) s 45(2)(a)] 25 years 5 years 9 months

3 Taking part in an act of sexual penetration with a child under 16
[Crimes Act 1958 (Vic) s 45(2)(a)] 25 years 2 years 3 months

4 Taking part in an act of sexual penetration with a child under 16
[Crimes Act 1958 (Vic) s 45(2)(a)] 25 years 2 years 6 months 6 months

5 Taking part in an act of sexual penetration with a child under 16
[Crimes Act 1958 (Vic) s 45(2)(a)] 25 years 5 years 1 year 3 months

Total Effective Sentence: 7 years 9 months

Pre-sentence Detention Declared: 288 days

Other relevant orders: Sentenced as a serious sexual offender in respect of charges 3, 4, and 5, pursuant to Section 6F of the Sentencing Act 1991. Forensic sample on charges 1 to 5, pursuant to Section 464ZF(2) of the Crimes Act 1958. Registered for life as a sex offender pursuant to Section 34 of the Sex Offenders Registration Act 2004.

The appellant was also sentenced, at the same time, in respect of a further count of taking part in an act of sexual penetration with a child under 16, to which he had pleaded guilty (‘the plea offence’). That offence was committed whilst the appellant was on bail, awaiting trial for the offences referred to above and, self-evidently, concerned a different complainant. He was sentenced to 2 years and…

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 O'Reilly v The Queen

Details

AGLC: O'Reilly v The Queen [2015] VSCA 19
Case: [2015] VSCA 19
Decision Date: 16 February 2015

CaseChat Overview and Summary

In the case of O'Reilly v The Queen, the appellant, O'Reilly, faced five counts of sexual penetration of a child under the age of 16, with the alleged offences occurring between 1996 and 1998. The High Court of Australia was tasked with examining the validity of the verdicts rendered by the lower court. The core of the Crown's case hinged on the testimony of the complainant, whose account during the special hearing diverged significantly from the particulars of the charges and the version of events provided during a Victim Affected Reporting Enquiry (VARE). This inconsistency raised substantial questions about the reliability and safety of the verdicts.

The central legal issue before the court was whether the verdicts of guilt were unsafe and unsatisfactory, given the discrepancies in the complainant's testimony. The court had to determine if the inconsistencies were so significant that they undermined the reliability of the evidence, thus necessitating a reevaluation of the verdicts. The appellant argued that the variances in the complainant's statements were critical and warranted a reconsideration of the findings. The court, upon thorough examination, found that the discrepancies were indeed material and affected the probative value of the evidence, thereby impacting the safety and satisfaction of the verdicts.

The High Court concluded that the inconsistencies in the complainant's testimony were of such gravity that they compromised the reliability of the evidence. Consequently, the court ruled that the verdicts were unsafe and unsatisfactory. As a result, the appeal was allowed, and the verdicts of acquittal were entered. The court's decision underscored the importance of consistency and reliability in testimonial evidence, particularly in cases involving serious allegations of sexual offences against children.

Orders