Pringle v The Queen

[2021] VSCA 89

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0122

GEORGE PRINGLE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, NIALL and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 February 2021
DATE OF JUDGMENT:	8 April 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 89
JUDGMENT APPEALED FROM:	[2019] VCC 101 (Judge Fox)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of seven charges of sexual penetration of a child under 16 (two where child under 10) and three charges of indecent act with a child under 16 – Whether substantial miscarriage of justice due to admission of evidence of extensive cannabis consumption by applicant throughout relevant period – Whether verdicts unsafe and unsatisfactory because combination of factors cast inevitable doubt over reliability of complainant’s account.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	SLKQ Lawyers
For the Respondent	Mr C B Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Introduction

1. Niall and T Forrest JJA, whose joint reasons I have had the considerable advantage of reading in draft, would refuse this application for leave to appeal against conviction on both proposed grounds.  I respectfully agree with their conclusions on ground 2, which contends that the verdicts are unsafe and unsatisfactory.[1]

   [1]See Criminal Procedure Act 2009 (‘CPA’), s 276(1)(a), which provides that the Court of Appeal must allow an appeal against conviction if ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.

1. It is my misfortune, however, to have reached a different conclusion on the first ground, which broadly concerns the evidence of the applicant’s cannabis use.  On that ground, I would grant leave to appeal; allow the appeal; set aside the convictions; and order a new trial.[2]

   [2]CPA, s 277(1)(a).

1. Given the thorough examination in the joint reasons of the complainant’s evidence;[3] her mother’s evidence;[4] the evidence of other prosecution witnesses;[5] the applicant’s evidence;[6] the prosecutor’s final address;[7] and the submissions of the parties;[8] I am able to express my conclusions with relative brevity.

   [3]At [43]–[66].

   [4]At [67]–[74].

   [5]At [75]–[79].

   [6]At [80]–[92].

   [7]At [93]–[98].

   [8]At [106]–[108].

Ground 2:  Unsafe and unsatisfactory verdicts?

1. Essentially for the reasons advanced in the joint reasons, I agree that it was open to a properly instructed jury, acting only upon the admissible evidence, to convict the applicant of sexual penetration of a child under 16 (charges 2, 4, 5, 7, 9, 11 and 12) and committing an indecent act with a child under 16 (alternative charges 3, 6 and 10).

1. As I followed the oral submissions of the applicant’s counsel — which expanded significantly on the written case — it was contended that seven matters should have led the jury to entertain a reasonable doubt as to the applicant’s guilt: first, the forensic disadvantage flowing from delay; secondly, various internal inconsistencies in the complainant’s account; thirdly, suggested inconsistencies between the complainant’s version and the evidence of others; fourthly, certain other evidence that rendered aspects of the complainant’s…