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,…
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- AGLC
- George Packard (a pseudonym)[1] v The Queen [2018] VSCA 45
- Case
- [2018] VSCA 45
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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