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Peter Daniels (a pseudonym)[1] v The Queen

Peter Daniels (a pseudonym)[1] v The Queen

Case [2017] VSCA 159 19 May 2017

Appeal

Jurisdiction

Reasonable Doubt

Admissibility of Evidence

Fundamental Irregularity

Criminal Law

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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…

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 Peter Daniels (a pseudonym)[1] v The Queen

Details

AGLC: Peter Daniels (a pseudonym)[1] v The Queen [2017] VSCA 159
Case: [2017] VSCA 159
Decision Date: 19 May 2017 (Orders); 23 June 2017 (Reasons)

CaseChat Overview and Summary

Peter Daniels, the appellant, applied for leave to appeal against his conviction for incest, which was found unsafe and unsatisfactory. The Court of Appeal granted leave, finding that numerous infirmities in the complainant's evidence and that of a key witness, as well as the highly implausible allegations of uncharged acts, rendered the complaint unreliable. The circumstances in which the complaint was made further undermined its reliability. The appellant, who was of good character and presented as a credible witness, led to the conclusion that a reasonable jury must have held a reasonable doubt. The Court also found that the admission of 'context' evidence was erroneous as its probative value did not outweigh the risk of unfair prejudice, in accordance with the Evidence Act 2008 s 137.

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