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Ritchie (a pseudonym) v The Queen

Ritchie (a pseudonym) v The Queen

Case [2019] VSCA 202 17 September 2019

Appeal

Breach of Duty of Fairness

Hearsay Evidence

Admissibility of Evidence

Intemperate Language

Substantial Miscarriage of Justice

Juries Directions

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0255

LEONA RITCHIE (a pseudonym)[1]	Applicant
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 applicant and other relevant parties.

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JUDGES:	KAYE, WEINBERG JJA and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2019
DATE OF JUDGMENT:	17 September 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 202
JUDGMENT APPEALED FROM:	DPP v Ritchie (a pseudonym) [2018] VCC 1866 (Judge Murphy)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of two charges of committing an act of gross indecency in the presence of a child under the age of 16 and two charges of incest – Prosecutor’s address alleging evidence of witness influenced by bias and collusion with accused – Witness cross-examined by prosecutor by leave under s 38 of the Evidence Act 2008 – Prosecutor did not put allegations of bias and collusion to witness – Whether breach of duty of fairness – Whether alleged incriminating conduct by accused – Intemperate language by prosecutor – Whether substantial miscarriage of justice – Whether trial judge gave erroneous directions to jury by conflating tendency and context evidence – Hearsay evidence – Whether unreliability evidence direction necessary – Whether trial judge’s directions on distress evidence adequate – Whether trial miscarried due to an accumulation of errors – Leave to appeal granted, appeal allowed – Browne v Dunn (1893) 6 R 67; Bugeja v The Queen (2010) 30 VR 493; Saddik v The Queen [2018] VSCA 249; Reid v Kerr (1974) 9 SASR 367; Thomas v Van Den Yssel (1976) 14 SASR 205; R v Robinson [1977] Qd R 387; Gardiner v The Queen (2006) 162 A Crim R 233; RWC v The Queen [2010] NSWCCA 332; Evidence Act 2008 ss 38, 67, 97, 101; Juries Directions Act 2015 ss 14, 21, 31 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Mandy SC with Ms K A Blair	Doogue + George Defence Lawyers
For the Respondent	Mr C B Boyce QC	Mr John Cain, Solicitor for Public Prosecutions

KAYE JA:
WEINBERG JA
KIDD AJA

Following a trial in the County Court, the applicant was convicted of two charges of gross indecency, and two charges of incest. She was sentenced to a total effective term of imprisonment of six years and three months, with a non-parole period of three years and three months.

The applicant seeks leave to appeal against her conviction on each charge. The application for leave is based on five grounds, namely:

Ground 1:A substantial miscarriage of justice occurred as a result of comments and arguments made by the prosecutor in his final address.
Ground 2:The learned trial Judge erred in his directions as to the tendency evidence, by conflating evidence relied upon by the Crown as tendency evidence with evidence relied on by the Crown as context or…

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 Ritchie (a pseudonym) v The Queen

Details

AGLC: Ritchie (a pseudonym) v The Queen [2019] VSCA 202
Case: [2019] VSCA 202
Decision Date: 17 September 2019

CaseChat Overview and Summary

The applicant, Ritchie, appealed against his conviction for two charges of committing an act of gross indecency in the presence of a child under the age of 16 and two charges of incest. The appeal was heard in the Supreme Court of Victoria. Ritchie contended that there were multiple errors during his trial that cumulatively led to a miscarriage of justice. These included alleged prosecutorial misconduct, erroneous jury directions, and inadequacies in the handling of evidence.

The legal issues the court had to address were whether the prosecutor breached the duty of fairness by not putting allegations of bias and collusion to the witness, whether the prosecutor's intemperate language caused a substantial miscarriage of justice, and whether the trial judge gave erroneous directions to the jury. Additionally, the court considered whether the trial judge properly handled the hearsay and distress evidence, and whether a direction on the unreliability of evidence was necessary.

The court found that there were several errors during the trial that individually and cumulatively led to a miscarriage of justice. The prosecutor's failure to put allegations of bias and collusion to the witness breached the duty of fairness. The prosecutor's intemperate language was also held to have contributed to a substantial miscarriage of justice. Furthermore, the trial judge's directions to the jury conflated tendency and context evidence and were inadequate in handling hearsay and distress evidence. The court concluded that these errors, when considered together, meant the trial did not achieve a fair result. The appeal was allowed, and Ritchie's convictions were quashed.

Orders