SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0107
| BRYAN PATE (A PSEUDONYM)[1] | Appellant |
| 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 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…
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- AGLC
- Pate (a pseudonym) v The Queen [2015] VSCA 110
- Case
- [2015] VSCA 110
- Decision Date
CaseChat Overview and Summary
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
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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