R v Lyne - [2003] VSCA 118

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 274 of 2001

THE QUEEN
	v.
RICHARD HENRY LYNE

---

JUDGES:	CHARLES, CHERNOV and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 August 2003
DATE OF JUDGMENT:	15 August 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 118

---

CRIMINAL LAW – Conviction – Sexual penetration of a child under the age of 10 – VATE tape made pursuant to Evidence Act 1958 s.37B admitted in evidence – VATE tape made available to jury in jury room – Fundamental procedural irregularity – Miscarriage of justice – Proviso to Crimes Act 1958 s.568(2) not applicable – R. v. BAH (2002) 5 V.R. 517; R. v. Dale Lewis [2002] VSCA 200.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G.J. Thomas	Victoria Legal Aid

CHARLES, J.A.:

On 29 October 2001 the applicant pleaded not guilty in the County Court at Melbourne to a presentment alleging six counts, one of sexual penetration of a child under the age of 10, two counts of taking part in an act of sexual penetration with a child aged between 10 and 16, and three counts of indecent act with a child under the age of 16. The trial lasted a week and on 2 November the applicant was found guilty on three counts. Of these, count 2 alleged an indecent act with a child under the age of 10, the allegation being that the applicant had taken indecent photographs of the complainant; count 4 alleged an indecent act with a child under the age of 16; and count 5 alleged that the applicant had taken part in an act of sexual penetration with a child aged between 10 and 16.

After a plea the applicant was sentenced on each count to be imprisoned for four years, and, after orders for cumulation, an effective term of imprisonment of six years was imposed, the trial judge fixing a non-parole period of 3½ years.

The applicant now seeks leave to appeal against conviction, the single ground of the application that was argued being a claim that the judge erred in allowing the jury to have with it in the jury room during its deliberations the video tape of the complainant’s statement to police (“the VATE tape”).

The Crown case

The applicant, who was born on 21 June 1941, was a seasonal fruit picker and would periodically visit the complainant’s family between picking seasons. The prosecution alleged that the applicant engaged in sexual misconduct with the complainant (“S”) at two places where she had lived with her family, at Dandenong and Wodonga. S was said to have been eight years old at the date of the first offence alleged and 10 at the last.

The facts may be shortly stated. S said that the applicant had taken photographs of her naked on two different occasions, “last year” and “the year before”. She said the applicant took photographs of her in…

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 R v Lyne

Details

AGLC: R v Lyne [2003] VSCA 118
Case: [2003] VSCA 118
Decision Date: 15 August 2003

CaseChat Overview and Summary

In the case of R v Lyne, the appellant, Lyne, was convicted for the sexual penetration of a child under the age of 10. The case was heard in the Court of Appeal of Victoria. The primary issue in the case was whether the admission of a Video Assisted Transcription Evidence (VATE) tape, made pursuant to the Evidence Act 1958 section 37B, into evidence and its availability to the jury in the jury room, constituted a fundamental procedural irregularity that resulted in a miscarriage of justice. The court was also required to determine whether the proviso to Crimes Act 1958 section 568(2) was applicable in this case.

The court found that the admission of the VATE tape into evidence and its availability to the jury in the jury room did indeed constitute a fundamental procedural irregularity. The court held that the irregularity was not minor or trivial and was likely to have had a significant impact on the outcome of the trial. The court referred to previous cases, R v BAH (2002) 5 V.R. 517 and R v Dale Lewis [2002] VSCA 200, in support of its decision. The court found that the proviso to Crimes Act 1958 section 568(2) was not applicable in this case, as the irregularity was not one that could be disregarded as not affecting the appellant’s substantial rights. Therefore, the conviction was quashed, and a re-trial ordered.

The court concluded that the fundamental procedural irregularity in the admission and availability of the VATE tape resulted in a miscarriage of justice, and the conviction was quashed. The appellant was granted a re-trial, and the case was remitted to the lower court for further proceedings.

Orders