Russell v The Queen - [2013] VSCA 155

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0194

NOEL RUSSELL
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, HARPER and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 April 2013
DATE OF JUDGMENT:	21 June 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 155
JUDGMENT APPEALED FROM:	DPP v Russell (Unreported, County Court of Victoria, Judge Cotterell, 28 October 2011 (date of conviction), 8 December 2011 (date of sentence))

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CRIMINAL LAW – Application for leave to appeal against conviction – One charge of buggery with a child under 14 years and five charges of buggery – Offences committed over 40 years ago – Whether trial judge erred in directing the jury they could use hearsay evidence adverse to the applicant adduced in cross examination of the informant – Whether trial miscarried because of failure correctly to direct the jury about the use to be made of a false Crown theory of defence tactics never adopted by the applicant – Whether verdicts unsafe – Leave to appeal granted and appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Respondent	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I respectfully agree in the reasons of Harper JA, and with the orders which his Honour proposes.

Respecting Ground 2, I add this: The relevant cross-examination of the complainant may only have been directed to showing why it was that the applicant remembered the complainant some 40 years after the alleged offending began; or it might have been an intended – but dangerous – attack on the complainant’s character by reference to an incident said to have happened long ago. Again, it might have been intended to set up a motive but without directly confronting the complainant. But even if the last-mentioned was the intent, it is nonetheless clear that the alleged incident was not distinctly advanced in the complainant’s cross-examination as providing a motive for him to make the allegations against the applicant which he did.

Despite that being the situation, and despite the applicant giving no evidence about the alleged incident in examination in chief, cross-examination of the applicant relevantly began with this question:

You heard it put to him that he has in fact made up these allegations because you threatened to dob him in?

That had not been put to the complainant, and the prosecutor should not have asked a question which asserted that it had been. Counsel for the applicant should have objected; but he did not do so. In one sense, no harm was done; because the applicant gave a non-responsive answer. Nonetheless, the question was the starting point for the edifice which the prosecutor erected concerning motive, and the absurdity of the motive thus identified.

HARPER JA:

Introduction

Following a four-day trial by a jury in the County Court, the applicant (who is

presently in his 69^th year) was on 28 October 2011 convicted of six charges of buggery…

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 Russell v The Queen

Details

AGLC: Russell v The Queen [2013] VSCA 155
Case: [2013] VSCA 155
Decision Date: 21 June 2013

CaseChat Overview and Summary

In the case of Russell v The Queen, the applicant sought leave to appeal against his conviction for one charge of buggery with a child under 14 years and five charges of buggery. The offences were alleged to have been committed over 40 years ago. The applicant appealed against his conviction and sentence, raising several grounds of appeal, including the alleged misdirection of the jury by the trial judge regarding the use of hearsay evidence, the failure to direct the jury about a false Crown theory of defence tactics, and the safety of the verdicts.

The legal issues in the appeal revolved around whether the trial judge erred in directing the jury that they could use hearsay evidence adverse to the applicant, which was adduced in the cross-examination of the informant. Additionally, the court had to determine if the trial miscarried due to the failure to correctly direct the jury about a false Crown theory of defence tactics, which the applicant never adopted. The safety and reliability of the verdicts were also in question.

The court held that the trial judge's direction to the jury about the use of hearsay evidence was erroneous. It was determined that the trial judge should have directed the jury that they could not consider the hearsay evidence in assessing the credibility of the informant. Furthermore, the court found that the trial judge's failure to direct the jury about the false Crown theory of defence tactics constituted a misdirection. This misdirection, combined with the erroneous hearsay direction, led to the conclusion that the trial miscarried. Consequently, the court held that the verdicts were unsafe and unreliable.

The court granted leave to appeal and allowed the appeal, setting aside the applicant's convictions and ordering a re-trial. The court found that the errors in the trial had a substantial impact on the safety of the verdicts, thereby necessitating a new trial to ensure a fair process.

Orders