[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 appellant.

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JUDGES:	WEINBERG and PRIEST JJA and DIXON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 April 2015
DATE OF JUDGMENT:	20 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 110
JUDGMENT APPEALED FROM:	DPP v [Pate] (Unreported, County Court of Victoria, Judge M P Bourke, 2 May 2014)

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CRIMINAL LAW – Conviction – Appeal – Sexual offending against child complainant - Whether substantial miscarriage of justice because of admission of ‘previous representation’ made by alleged victim – Whether ‘previous representation’ concerned events ‘fresh in the memory of the person’ – Previous representation made 12 years after the events – Hearsay rule applicable – Section 66 of the Evidence Act 2008 – Failure to object to evidence – No substantial miscarriage of justice.

CRIMINAL LAW – Conviction – Appeal – Sexual offending against child complainant – Events occurring in 1998 – Whether forensic disadvantage direction adequate – Section 61 of the Crimes Act 1958 and s 165B of the Evidence Act 2008 – Obligation of counsel to press exception — Appeal allowed – Convictions quashed – New trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	Doogue O’Brien George
For the Crown	Mr B F Kissane QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WEINBERG JA:

On 8 April 2014, following a 12 day trial in the County Court, the appellant (now aged 59) was convicted of two charges of sexually penetrating a child under the age of 16. He was sentenced, on 2 May 2014, as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1 Sexual penetration of a child under the age of 16 [Crimes Act 1958 s 45] 10 years 3 years’ imprisonment Base

2 Sexual penetration of a child under the age of 16 [Crimes Act 1958 s 45] 10 years 3 years’ imprisonment 12 months

Total effective sentence 4 years’ imprisonment

Non-parole period 2 years and 6 months

On 7 November 2014, Redlich JA granted the appellant leave to appeal against conviction on the following grounds:

1A.A substantial miscarriage of justice occurred because of the admission of hearsay evidence of previous representations about the allegations that were not ‘fresh in the memory of the person’ who made the representation pursuant to s 66 of the Evidence Act 2008.
1B.The learned trial judge erred in failing to exclude [the complainant’s mother’s] evidence of [the complainant’s] complaint of a sore belly on a day following a dance lesson pursuant to s 137 of the Evidence Act 2008.
2.The learned trial judge failed to adequately direct the jury as to the significant forensic disadvantages suffered by the accused.[2]
[2]Leave to appeal in respect of two further grounds was refused. The appellant did not elect to…

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 Pate (a pseudonym) v The Queen

Details

AGLC: Pate (a pseudonym) v The Queen [2015] VSCA 110
Case: [2015] VSCA 110
Decision Date: 20 May 2015

CaseChat Overview and Summary

The appellant, identified as Pate, appealed against his conviction for sexual offences against a child complainant. The decision of the Court of Appeal of the Supreme Court of Victoria was the subject of this case. The appeal focused on two primary issues: whether the admission of a previous representation made by the complainant 12 years after the events constituted a substantial miscarriage of justice, and whether the direction given to the jury regarding the forensic disadvantage was adequate.

The court had to determine if the hearsay evidence, which was inadmissible under section 66 of the Evidence Act 2008, resulted in a substantial miscarriage of justice. The court considered the previous representation made by the complainant, which was not fresh in the memory of the person, and concluded that the hearsay rule applied. Additionally, the court assessed whether the failure to object to this evidence led to a substantial miscarriage of justice. The court also examined whether the direction provided to the jury regarding the forensic disadvantage was sufficient under sections 61 of the Crimes Act 1958 and 165B of the Evidence Act 2008.

The Court of Appeal found that the previous representation did not result in a substantial miscarriage of justice because it was not fresh in the memory of the person, and the hearsay rule applied. However, the court held that the direction given to the jury regarding the forensic disadvantage was inadequate. This inadequacy led to the court allowing the appeal, quashing the convictions, and ordering a new trial. The court's decision underscored the importance of proper forensic disadvantage directions in criminal trials involving sexual offences against child complainants.

Orders