SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0052
| PETER DANIELS (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: | REDLICH and PRIEST JJA, and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 May 2017 |
| DATE OF JUDGMENT: | 19 May 2017 (Orders); 23 June 2017 (Reasons) |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 159 |
| JUDGMENT APPEALED FROM: | DPP v [Daniels] (Unreported, County Court of Victoria, Judge Mullaly, 16 October 2015) |
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CRIMINAL LAW – Application for leave to appeal – Conviction – Incest – Whether verdict unsafe and unsatisfactory – Numerous infirmities in complainant’s evidence and that of key witness – Allegations of uncharged acts highly implausible – Complaint unreliable due to circumstances in which made – Appellant of good character and credible witness – Reasonable jury must have held a reasonable doubt – Whether admission of ‘context’ evidence was erroneous – Evidence Act 2008 s 137 – Probative value did not outweigh risk of unfair prejudice – Leave granted – Appeal allowed – Judgment of acquittal entered.
CRIIMINAL LAW – Appeal – Conviction – Jury empanelment – Juries Act 2000 s 39 – Whether fundamental irregularity to accused’s right of peremptory challenge – ‘Stand and face the dock’ procedure – Theodoropoulos v The Queen [2015] VSCA 364; Cook v The Queen [2016] VSCA 231; Beqiri v The Queen [2017] VSCA 112 considered – Solicitor’s evidence of insufficient time to confer with accused – No reasonable opportunity to view prospective jurors – Fundamental irregularity in jury selection.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M G O’Connell SC and Mr G Casement | Stary Norton Halphen |
| For the Crown | Mr J Gullaci | Mr John Cain, Solicitor for Public Prosecutions |
REDLICH JA
PRIEST JA:
Orders made
On 19 May 2017, the Court heard an application for leave to appeal against the appellant’s conviction on one charge of incest. At the conclusion of oral argument, the Court made orders granting the application for leave, allowing the appeal and entering a judgment of acquittal. These are our reasons for making those orders.
Overview
On 16 October 2015, a jury in the County Court found the appellant guilty of incest[2] (charge 1), but acquitted him of a second charge of incest (charge 2) and two charges of committing an indecent act with a child under 16[3] (charges 3 and 4).[4]
[2]Crimes Act 1958, s 44(2).
[3]Crimes Act 1958, s 47(1).
[4]On 5 April 2017 the judge sentenced the appellant to be imprisoned for four years and nine months, and fixed a non-parole period of three years.
Although we will later discuss the evidence in greater detail, in brief overview the charge of incest upon which the appellant was convicted arose out of events on 4 July 2014 involving ‘OBL’, the appellant’s granddaughter. The appellant went to visit his two grandchildren, and…
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- AGLC
- Peter Daniels (a pseudonym)[1] v The Queen [2017] VSCA 159
- Case
- [2017] VSCA 159
- Decision Date
CaseChat Overview and Summary
The court examined the issue of whether the jury empanelment process constituted a fundamental irregularity to the appellant's right of peremptory challenge, pursuant to the Juries Act 2000 s 39. The 'stand and face the dock' procedure was found to be a fundamental irregularity, in line with Theodoropoulos v The Queen, Cook v The Queen, and Beqiri v The Queen. The appellant's solicitor provided evidence that there was insufficient time to confer with the accused, and no reasonable opportunity to view prospective jurors. The court concluded that this amounted to a fundamental irregularity in the jury selection process.
As a result of the findings, the Court of Appeal allowed the appeal, granted leave for the appeal, and entered a judgment of acquittal. The Court found that the appellant's conviction for incest was unsafe and unsatisfactory, and that the irregularities in the jury empanelment process further undermined the fairness of the trial. The decision highlights the importance of ensuring that the rights of the accused are upheld in criminal proceedings, and that the probative value of evidence does not outweigh the risk of unfair prejudice.
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
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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