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Pollard v R

Pollard v R

Case [2011] VSCA 95 8 April 2011

Conviction

Evidence

Inconsistent Verdicts

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 516 of 2009

MARK RAYMOND POLLARD
	v
THE QUEEN

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JUDGES	BUCHANAN, NEAVE and MANDIE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 March 2011
DATE OF JUDGMENT	8 April 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 95
JUDGMENT APPEALED FROM	R v Pollard (Unreported, County Court, Judge Pilgrim, Date of Verdict: 3 December 2008, Date of Sentence: 30 January 2009)

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CRIMINAL LAW – Conviction – Applicant convicted of counts of rape and attempted rape – Applicant acquitted of another rape count but found guilty of alternative count of sexual penetration of a child under 16 – Consciousness of guilt – Evidence not ‘intractably neutral’ – R v Ciantar (2006) 16 VR 26, applied – Discretion to exclude evidence – R v Christie [1914] AC 545, cited – Probative value not outweighed by prejudice to applicant – Inconsistent verdicts – Single episode of offending – Open for jury to doubt only part of complainant’s evidence – Application for leave to appeal against conviction refused.

PRACTICE AND PROCEDURE – Criminal law – Filing over of new presentment after complainant examined at special hearing – Counts added to new presentment not alternatives to existing counts – Reid v The Queen [2010] VSCA 234, applied – No prejudice to applicant – New counts arose out of same alleged facts – Defence case of denial remained substantially the same – Opportunity to further cross-examine.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr D A Dann	James Dowsley & Associates
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Neave JA.

NEAVE JA:

The applicant, Mark Raymond Pollard, was convicted by a County Court jury of counts of rape (count 3), attempted rape (count 5) and sexual penetration of a child under 16 (count 2). The count of sexual penetration of a child under 16 was left to the jury as an alternative to another rape count (count 1), of which the applicant was acquitted. The applicant was sentenced to a total effective term of 5 years and 6 months’ imprisonment, with a non-parole period of 3 years. He now appeals against his conviction.

Background

The offences were said to have been committed on 24 October 2007 against the complainant, AT, who was then aged 15. The applicant was aged 42. He lived next door to the complainant, with his wife and two young children.

There was expert evidence that, in the months before the alleged offences, the applicant and complainant had sent very large numbers of text messages to each other, and that their two phones were ‘paired’ to facilitate communication between them. There was also evidence that each of them had sent sexually explicit images or videos to the other. This evidence is described in more detail below.

In her evidence-in-chief, the complainant said that, a few months before the offences were committed, she was with the applicant in his garage,…

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 Pollard v R

Details

AGLC: Pollard v The Queen [2011] VSCA 95
Case: [2011] VSCA 95
Decision Date: 8 April 2011

CaseChat Overview and Summary

In the case of Pollard v R, the applicant was convicted on counts of rape and attempted rape, and was acquitted on another rape count but found guilty of an alternative count of sexual penetration of a child under 16. The applicant appealed against the conviction, arguing the evidence was 'intractably neutral' and that the verdicts were inconsistent. The appeal was heard by the Court, which considered the discretionary exclusion of evidence and the probative value versus the prejudicial effect on the applicant.

The legal issues before the court were whether the evidence was 'intractably neutral' and whether the probative value of the evidence was outweighed by the prejudice to the applicant. The court also considered whether the inconsistent verdicts were permissible in light of the single episode of offending. The applicant argued that the verdicts were inconsistent, and that the evidence should have been excluded as it was 'intractably neutral'. The prosecution maintained that the evidence was probative and not prejudicial, and that the inconsistent verdicts were permissible as they arose from a single episode of offending.

The court found that the evidence was not 'intractably neutral' and that the probative value of the evidence was not outweighed by the prejudice to the applicant. The court applied the principles in R v Ciantar and R v Christie, and held that the discretion to exclude evidence was properly exercised. The court also found that the inconsistent verdicts were permissible, as they arose from a single episode of offending and it was open for the jury to doubt only part of the complainant’s evidence. The application for leave to appeal against conviction was refused.

The court also considered the issue of the new counts added to the presentment after the complainant was examined at a special hearing. The court held that the new counts were not alternatives to the existing counts, and that the applicant was not prejudiced as the defence case of denial remained substantially the same. The applicant had the opportunity to further cross-examine the complainant. The court applied the principles in Reid v The Queen and found that there was no prejudice to the applicant.

Orders