Payne v The Queen
[2015] VSCA 291
•29 October 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0144
| JOHN PETER PAYNE |
| v |
| THE QUEEN |
---
| JUDGES: | REDLICH and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 October 2015 |
| DATE OF ORDER: | 29 October 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 291 |
| JUDGMENT APPEALED FROM: | Unreported, County Court of Victoria, Judge Cotterell, 1 April 2015 |
---
CRIME – Conviction – Jury trial – Admissions – Directions on admissions not given – Substantial miscarriage of justice – Leave to appeal granted – Appeal allowed – Re-trial ordered.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant/Appellant | Mr D A Dann | James Dowsley & Associates |
| For the Crown | Mr T Gyorffy QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA
WHELAN JA:
On 26 November 2014, after a trial which had begun on 10 November 2014, the applicant/appellant was convicted on one charge of maintaining a sexual relationship with a child under 16. He applied for leave to appeal that conviction. On 29 October 2015 the Court granted leave to appeal, ordered that the appeal be heard instanter and be allowed, quashed the conviction and sentence, and ordered a new trial. The Court indicated that reasons would be delivered in due course. These are those reasons.
The indictment upon which the applicant/appellant was charged contained one count of maintaining a sexual relationship with a child under the age of 16 years. Instances of sexual activity denoted (a) to (v) were set out and particularised on that indictment.
Amongst the evidence upon which the prosecution relied were admissions allegedly made by the applicant/appellant to a person named Christopher Sowerbutts at the time of the alleged relationship.
The trial was conducted under the provisions of the Jury Directions Act 2013. Pursuant to s 11 of that Act the prosecution and defence counsel were each required to request the trial judge to give, or not to give, to the jury particular directions in respect of the matters in issue and the evidence in the trial.
The prosecutor requested a direction as to the ‘admissions’, without amplification, and counsel for the accused indicated that he did not object to that.
Towards the end of the judge’s charge, no directions as to admissions having been given, the following interchange occurred:
[PROSECUTOR]: ... The other one I had was the admissions so the Crown sought to have a number of admissions proven against the accused man in regards to Mr Sowerbutt’s evidence particularly. I’m happy for Your Honour to cover that in summary of closing argument.
HER HONOUR: Well, they are alleged admissions.
[PROSECUTOR]: Indeed.
HER HONOUR: Right well I hadn’t even turned my mind to that.
[DEFENCE COUNSEL]: I don’t think it’s necessary Your Honour. It is what it is. We both run our arguments before the jury, he says an admission was made against my client’s interests, I say that’s balderdash or I think (indistinct) was the expression I used.
HER HONOUR: Well it’s clearly an admission against his interests, is it not?
[DEFENCE COUNSEL]: It would be, if you could believe a word of Mr Sowerbutt.
[PROSECUTOR]: That’s argument not direction.
HER HONOUR: Well I’m going to have to have a look at all of this then.
Whilst reference was then made to the admissions in the course of summarising the evidence and the submissions made, the judge did not give the jury directions of the kind addressed in Burns v The Queen (‘Burns’).[1]
[1](1975) 132 CLR 288, 261.
The ground of appeal in relation to which leave was sought and granted was the following:
The trial of the applicant miscarried in that the jury [was] given no directions as to the evidence of admissions allegedly made by the applicant.
Counsel for the applicant/appellant submitted to the Court that the admissions had been a very important part of the Crown case. Initially he submitted that the directions which ought to have been given included both of the directions referred to in Burns, being the need for satisfaction that the admission had been made and the need for satisfaction that the admission was truthful. It was clear that the question of whether the admissions had been made was a significant issue in the trial. In the course of argument counsel for the applicant/appellant agreed that this was not a case where any issue arose as to whether the admissions had been truthful, if they were found to have been made.
The matter which was of greater significance, however, as put by counsel for the applicant/appellant, was that the admissions themselves, were highly prejudicial if the jury accepted they were made and particularly so as it was far from clear that they were admissions as to any charged act. The jury were given no assistance in relation to the competing interpretations of the admissions that were made or in relation to how the admissions could be used. In particular, the jury were given no directions as to the need to determine whether they were admissions of any of the specified incidents, or of any of the uncharged acts, or of any other relevant matter. It was submitted on behalf of the applicant/appellant that the circumstances which arose here were relevantly the same as those which had arisen in Choudhary v The Queen.[2] It was submitted that the fact that defence counsel had, it seemed, been oblivious to these issues ought not to prevent the appeal from succeeding as the failure to give any relevant directions on these issues had given rise to a substantial miscarriage of justice.
[2][2013] VSCA 325.
The Crown filed a response to the applicant/appellant’s written case in which it conceded that a substantial miscarriage of justice had occurred as a result of the failure to give directions in relation to the admissions. In its written case the Crown submitted that at the very least adequate directions should have included:
(a)identification of the evidence that was capable of amounting to an admission;
(b)identification of which occasions as particularised in Charge 1 [of the indictment] that each [potential] admission could potentially apply to;
(c)whether the admission could be used in a more general way as to the existence of the sexual relationship; and
(d)a Burns direction (that the jury would need to be satisfied beyond reasonable doubt that the admission was made and that the admission was true).
Notwithstanding the Crown’s position in its written response to the applicant/appellant’s written case, the Court heard full argument from the applicant/appellant.
Senior counsel on behalf of the Crown who appeared on the application supported the applicant/appellant’s counsel’s submission that a substantial miscarriage of justice had occurred. Senior counsel emphasised that directions had been required in relation to the relationship between the admissions and the incidents specified in the indictment together with a direction that the jury should not act on the evidence of the admissions unless satisfied beyond reasonable doubt that the admissions had been made. Of course the latter direction would no longer be required having regard to s 61 of the Jury Directions Act 2015.
Having heard full argument, the Court concluded that the joint position of both the Crown and the applicant/appellant was correct. The orders previously set out were then made.
It is a very unfortunate circumstance that a re-trial is now required as a result of a matter which was so germane an issue in the trial and which ought to have been identified by counsel for both parties in the trial.
- - -
2