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Packard (a Pseudonym) v The Queen

Packard (a Pseudonym) v The Queen

Case [2018] VSCA 45 5 March 2018

Appeal

Admissibility of Evidence

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0021

GEORGE PACKARD (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, 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 and BEACH JJA, and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2018
DATE OF JUDGMENT:	5 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 45
JUDGMENT APPEALED FROM:	DPP v [Packard] (Unreported, County Court of Victoria, Judge Pullen, 9 March 2016 (conviction))

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CRIMINAL LAW — Appeal — Conviction — Incest — Tendency evidence — Prosecution relied on charged and uncharged acts — Whether tendency evidence from complainant unsupported — Whether evidence possessed significant probative value — Whether probative value substantially outweighed prejudicial effect — Evidence Act 2008 ss 55, 56, 97(1) and 101(2) — IMM v The Queen (2016) 257 CLR 300; Hughes v The Queen (2017) 344 ALR 187.

CRIMINAL LAW — Appeal — Conviction — Incest — Prosecutor opened that the appellant had ‘raped’ the complainant — Repeated references to rape (and derivatives) by prosecutor and judge — Whether unfair trial resulted.

CRIMINAL LAW — Appeal — Conviction — Incest — Complainant’s VARE (Video and audio recorded evidence) — Whether judge misdirected the jury on use — Whether judge’s directions impermissibly bolstered complainant’s credibility.

CRIMINAL LAW — Appeal — Conviction — Incest — Judge’s intervention during cross-examination of complainant — Whether judge’s intervention diminished availability of alibi — Whether unfair trial resulted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Gyorffy QC with Mr L J D Howson	Slades & Parsons
For the Respondent	Mr C B Boyce SC	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA:

Convictions and grounds of appeal

On 9 March 2016, a jury empanelled in the County Court found the applicant guilty of five charges of incest (charges 1 to 5),[2] perpetrated against his step-daughter, ‘IAC’.[3]
[2]Crimes Act 1958, s 44(1).
[3]Following his conviction by the jury, on 6 April 2016 the applicant pleaded guilty to two further charges on a separate Indictment of possessing child pornography. On 11 November 2016, the judge imposed individual sentences of six years’ imprisonment on charges 3 and 4, five years’ imprisonment on charges 1, 2 and 5, and 60 days’ imprisonment on the two child pornography charges. With orders for cumulation, the judge arrived at a total effective sentence of 10 years, 4 months and 28 days’ imprisonment. A non-parole period of 7 years was fixed.

The applicant seeks leave to appeal against his conviction on four grounds, formulated as follows:

1. The following tendency evidence was wrongly admitted or directed on for that purpose or both:
a. The complainant’s account of uncharged acts (C.5 on tendency notice);
b. The complainant’s account of a conversation in which the she [sic.] alleged the accused wanted to rape her (B.6 on tendency notice);
c. The complainant’s mother’s account,…

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 Packard (a Pseudonym) v The Queen

Details

AGLC: George Packard (a pseudonym)[1] v The Queen [2018] VSCA 45
Case: [2018] VSCA 45
Decision Date: 5 March 2018

CaseChat Overview and Summary

The appellant, identified as Packard, appealed against his conviction for incest and other related offences. The case was heard in the High Court of Australia, where the appellant contested the legal sufficiency of the evidence and the fairness of the trial process. The primary dispute was whether the evidence from the complainant, who was also the appellant's daughter, was sufficiently reliable and whether the trial process was fair given the manner in which the evidence was presented and the judge's interventions.

The legal issues before the Court included the admissibility of the complainant's tendency evidence under the Evidence Act 2008, the fairness of the trial in light of the prosecutor's language and the judge's conduct, and the adequacy of the judge's directions to the jury regarding the use of the complainant's video and audio recorded evidence (VARE). The Court was required to determine if the probative value of the evidence outweighed its prejudicial effect and whether the trial process was fair and free from substantial unfairness.

The Court found that the evidence from the complainant, although unsupported, had significant probative value and its admission did not substantially prejudice the appellant. The repeated references to 'rape' by the prosecutor and the judge did not render the trial unfair. The judge's intervention during the cross-examination of the complainant did not diminish the availability of the alibi, nor did it prejudice the appellant's right to a fair trial. The judge's directions to the jury were also deemed appropriate, and no misdirection occurred.

The appeal was dismissed, and the conviction was upheld. The Court determined that the trial was fair and the evidence was admissible and of sufficient probative value. The conduct of the prosecutor and the judge, as well as the judge's intervention, did not result in a substantial miscarriage of justice.

Orders