Randall (a pseudonym) v The King - [2023] VSCA 90

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0025

ALLEN RANDALL (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, T FORREST and R OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 March 2023
DATE OF JUDGMENT:	27 April 2023
DATE OF REASONS:	27 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 90
JUDGMENT APPEALED FROM:	DPP v [Randall] (Unreported, County Court of Victoria, 21 October 2021, Judge Doyle) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Incest and related offending – Applicant appeared at trial on screen via video link from a remote facility – Screen located beside another screen displaying complainants’ evidence – Whether use of screen infringed the applicant’s right to silence – Whether use of screen tended to reverse onus of proof or dilute standard of proof – Whether trial judge failed adequately to direct jury on use of video link – Whether use of video link caused trial to miscarry – Leave to appeal refused.

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Counsel
Applicant:		Mr M Stanton and Mr J Riordan
Respondent:		Ms R Harper
Solicitors
Applicant:	Furstenberg Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA
R OSBORN JA:

Introduction

On 22 October 2021, following a 10 day trial by jury in the County Court at Morwell, the applicant was convicted of 15 charges of incest, one charge of attempted incest and one charge of indecent act with a child under 16.
The applicant now seeks leave to appeal against conviction on the basis that arrangements made for him to appear during part of his trial by way of a video link to cells caused the trial to miscarry. The proposed grounds of appeal are as follows:
1. The manner in which the applicant appeared at his trial amounted to a fundamental irregularity going to the root of the trial. In particular, the applicant’s appearance by audio visual link on a screen directly next to a screen playing the complainant’s (sic) recorded evidence:
(i)       infringed the applicant’s right to silence;
(ii)      tended to reverse the burden of proof; and/or
(iii)     tended to dilute the standard of proof.
2.A substantial miscarriage of justice occurred by reason of the learned trial judge failing to direct the jury (or, in the alternative, failing to direct the jury adequately) in relation to the applicant appearing at his trial by audio visual link on a screen directly next to a screen playing the complainant’s (sic) recorded evidence.
For the reasons that follow, we do not accept that the proposed grounds are reasonably arguable and leave to appeal will be refused.

Background facts

The alleged offending comprised serial sexual assaults upon the applicant’s three de facto step daughters during a period that the family lived on a rural property. The three complainants were the principal…

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 Randall (a pseudonym) v The King

Details

AGLC: Randall (a pseudonym) v The King [2023] VSCA 90
Case: [2023] VSCA 90
Decision Date: 27 April 2023

CaseChat Overview and Summary

The case of Randall, a pseudonym used for anonymity, saw the applicant appealing against his conviction for incest and related offences. The trial had been conducted with the applicant appearing via video link from a remote facility, a procedure necessitated by his incarceration. This arrangement involved the applicant being visible on one screen while the evidence of the complainants was displayed on an adjacent screen. The primary legal issues revolved around whether this method of presentation infringed upon the applicant's right to silence, if it had the effect of reversing the burden of proof or lowering the standard of proof, and whether the trial judge had appropriately directed the jury regarding the use of the video link. Additionally, the applicant argued that the use of the video link had resulted in a miscarriage of justice.

The court meticulously examined the procedure used during the trial and the potential implications of the video link on the fairness and integrity of the proceedings. The court concluded that the use of the video link did not infringe upon the applicant's right to silence, nor did it alter the standard of proof or reverse the burden of proof. The court also found that the trial judge had adequately directed the jury on the use of the video link, ensuring that the jury understood the limitations and potential biases of the technology. Furthermore, the court held that the video link did not result in a miscarriage of justice, affirming that the trial remained fair and just despite the unconventional method of presentation.

In light of these findings, the court dismissed the applicant's appeal. The reasoning was that the use of the video link was a legitimate procedural decision, aimed at ensuring the safety and health of all parties involved, and did not prejudice the applicant's right to a fair trial. Consequently, the conviction stood affirmed, and the applicant's appeal was dismissed without leave to appeal.

Orders