Roger Ward (a pseudonym)[1] v The Queen - [2017] VSCA 37

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0237

ROGER WARD (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, 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, REDLICH and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2016
DATE OF JUDGMENT:	3 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 37
JUDGMENT APPEALED FROM:	DPP v [Ward] (Unreported, County Court of Victoria, Judge Patrick, 29 October 2015)

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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 16, indecent act with child under 16 – Complainant aged between six and seven – Whether verdicts unsafe and unsatisfactory – Alleged inconsistencies in evidence during VARE and special hearing – Whether complainant retracted allegations under cross-examination – Whether jury bound to have doubt – Consideration of position of child complainant under cross-examination – Factors affecting assessment of child’s answers – Verdicts not unsafe – Appeal dismissed.

CRIMINAL LAW – Trial – Course of evidence – Child witness – Cross-examination – Difficulties of comprehension – Obligation of fairness to witness – Importance of age-appropriate questions – Duty of trial judge to ensure fair trial – Defence counsel’s obligation to accused – Rule in Browne v Dunn (1893) 6 R 67 – Procedural fairness – Content of obligation varies with age of witness – Benefits of pre-evidence hearings – Assessment of child’s capacity – Sources of guidance for judges and practitioners – Evidence Act 2008 ss 41, 42.

CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 (three charges), indecent act with child under 16 (three charges) – Victim aged between six and seven – Total effective sentence nine years’ imprisonment, non-parole period seven years – Whether manifestly excessive – Serious offending – Breach of trust – Previous good character – Offender aged 68 – Sentences within range – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC with Ms C B Hollingworth	Paul Vale Criminal Law
For the Crown	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P

REDLICH JA:

Summary

Following a 12-day trial, the applicant (‘RW’), aged 68, was convicted of three charges of indecent act with a child under the age of 16 and three charges of sexual penetration of a child under the age of 16. He was found not guilty of two charges of sexual penetration of a child under the age of 16. All of the offending related to the same complainant (‘J’), who was between six and seven years old at the time of the offending.

Following a plea in mitigation, RW was sentenced to nine years’ imprisonment, with a non-parole period of seven years. He now seeks leave to appeal against conviction and sentence.

As to his conviction, RW contends that the verdict…

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.

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Details

Case: [2017] VSCA 37
Decision Date: 3 March 2017

CaseChat Overview and Summary

The appeal brought by Roger Ward against his conviction for sexual penetration and indecent acts with a child under the age of 16 was before the court. The complainant, who was between six and seven years old at the time of the offences, was subjected to cross-examination during the trial which led to alleged inconsistencies in her testimony. The appeal contested the safety and satisfaction of the jury's verdicts, as well as the severity of the sentence imposed.

The court examined the legal issues surrounding the safety and satisfaction of the jury's verdicts, considering the complainant's age and the alleged inconsistencies in her testimony during cross-examination. The court also considered the trial judge's handling of the child witness, including the importance of age-appropriate questions and the trial judge's duty to ensure a fair trial. Additionally, the court assessed whether the sentence imposed was manifestly excessive, taking into account the seriousness of the offences, the breach of trust, the offender's previous good character, and his age at the time of sentencing.

The court found that the jury's verdicts were safe and satisfactory, and that the trial judge had appropriately managed the child witness, ensuring that the cross-examination was conducted fairly and in an age-appropriate manner. The court also determined that the sentence imposed was within the appropriate range, taking into account the factors mentioned above. Consequently, the appeal was dismissed, and leave to appeal against the sentence was refused.

The final orders of the court were to dismiss the appeal and to refuse leave to appeal against the sentence.

Orders