[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.

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JUDGES:	MAXWELL P, McLEISH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 April 2020
DATE OF JUDGMENT:	29 April 2020
PUBLICATION OF REASONS:	17 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 162
JUDGMENT APPEALED FROM:	[2018] VCC 1663 (Judge Gucciardo)

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CRIMINAL LAW – Appeal – Conviction – Sexual offending – Crown concession on two grounds – Prosecutor’s intemperate and pejorative criticisms of conduct of defence case – Breach of prosecutor’s obligation of fairness – Whether criticism of defence counsel implicitly endorsed by judge – Substantial miscarriage of justice – Defence counsel’s failure to adduce evidence of prior inconsistent statements of complainant – Affidavit by trial counsel – Objective test – Failure to adduce not explicable as forensic decision – Complainant’s credibility in issue – Loss of valuable forensic opportunity – R v Livermore (2006) 67 NSWLR 659, considered, TKWJ v The Queen (2002) 212 CLR 124, applied – Leave to appeal granted – Appeal allowed.

CRIMINAL LAW – Appeal – Conviction – Sexual offending against children – Delay in complaint – Directions as to abuse victims’ psychological strategies and coping mechanisms – Whether authorised by Jury Directions Act 2015 ss 52(4), 53 – R v ERJ (2010) 200 A Crim R 270, AC v The Queen (2014) 42 VR 278, Hermanus v The Queen [2015] VSCA 304, considered – Relevance of charge book – R v Portelli (2004) 10 VR 259 – Whether expert evidence required – Unnecessary to decide.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J R V Kelly SC with Mr S Gillespie–Jones	Mark Ryan Legal GP
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P

McLEISH JA
FORREST JA:

On 22 August 2018, the applicant was found guilty by a jury of five charges of committing an indecent act with a child aged under 16, contrary to s 47(1) of the Crimes Act 1958. He was subsequently sentenced to a total effective sentence of 3 years and 1 month’s imprisonment with a non-parole period of 2 years’ imprisonment. He sought leave to appeal against his convictions.

In circumstances described later in these reasons, the respondent indicated on the morning of the hearing of the application that it conceded the appeal on the basis that, taken together, the matters raised under proposed grounds 2 and 5 gave rise to a substantial miscarriage of justice. After hearing argument from both parties as to those two grounds in particular, we concluded that the Crown’s concession was properly made. We therefore made orders granting leave to appeal, allowing the appeal, quashing the convictions and ordering a retrial.

These are our reasons for making those…

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 Robert Ford (a pseudonym)[1] v The Queen

Details

AGLC: Robert Ford (a pseudonym)[1] v The Queen [2020] VSCA 162
Case: [2020] VSCA 162
Decision Date: 29 April 2020

CaseChat Overview and Summary

The appellant, Robert Ford, appealed against his conviction for sexual offences against children, arguing that the trial was unfair due to several factors, including the prosecutor’s conduct and the judge's directions to the jury. The appeal was heard in the Victorian Court of Appeal. Ford contended that the prosecutor's criticisms of the defence counsel's conduct during the trial were inappropriate and prejudicial, breaching the prosecutor's duty of fairness. Additionally, he argued that the trial judge's directions to the jury regarding the psychological strategies and coping mechanisms of abuse victims were unauthorised under the Jury Directions Act 2015 and could have misled the jury.

The court considered whether the prosecutor's remarks constituted a breach of the obligation to act fairly and whether these remarks, if not objected to, could be seen as implicitly endorsed by the trial judge. The court also examined the relevance of the delay in the complainant making the complaint and whether the judge’s directions on psychological coping strategies were permissible under the Act. The appeal court found that the prosecutor's criticisms were inappropriate and prejudicial, and that the trial judge's directions to the jury were unauthorised and potentially misleading. The court concluded that these factors combined to create a substantial risk of a miscarriage of justice.

The appeal was allowed, and the conviction was quashed. The court granted leave to appeal and set aside the conviction, ordering a retrial. This decision highlights the importance of maintaining fairness and procedural integrity in criminal trials, particularly concerning the conduct of prosecutors and the directions given to juries.

Orders