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Seccull v The King

Seccull v The King

Case [2022] VSCA 219 30 September 2022

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0012

JON ROBERT SECCULL	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST AP, NIALL JA and KIDD AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2022
DATE OF JUDGMENT:	30 September 2022
DATE OF REASONS:	14 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 219
JUDGMENT APPEALED FROM:	DPP v Seccull (Unreported, County Court of Victoria, 11 June 2021, Judge Gucciardo) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Rape and associated charges – Distress – Judge misdirected jury that evidence of complainant’s distress could be used as supporting evidence – Judge failed to give direction as to weight – Application for leave to appeal granted – Appeal allowed – New trial ordered – Evidence Act 2008 s 137; s 56 – Paull v The Queen [2021] VSCA 339; R v Flannery [1969] VR 586; R v Sailor [1994] 2 Qd R 342; R v Meyer [2007] VSCA 115 considered.

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Counsel
Applicant:		Mr P Holdenson KC with Mr J O’Connor
Respondent:		Ms D Piekusis KC
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP:

Introduction

On 11 June 2021, a jury empanelled in the County Court to try the applicant found him guilty of nine charges of rape,[1] two charges of common assault[2] and one charge of making a threat to inflict serious injury.[3] The judge directed verdicts of acquittal on two other charges of rape,[4] and the jury acquitted the applicant on a third.[5] Ultimately, on 18 October 2021, the trial judge sentenced the applicant to 15 years’ imprisonment, and fixed a non-parole period of 10 years and six months.[6]
[1]Charges 4, 6 to 11, and 13 to 15, in breach of s 38(1) of the Crimes Act 1958 (as amended by the Crimes Amendment (Rape) Act 2007).
[2]Charges 3 and 5, contrary to common law.
[3]Charge 12, in breach of s 21 of the Crimes Act 1958.
[4]Charges 1 and 9.
[5]Charge 2.
[6]DPP v Seccull [2021] VCC 1558.
The applicant sought leave to appeal against his conviction on five grounds:
1. A substantial miscarriage of justice occurred due to:
(a) the excessive interference or involvement by the learned trial judge in the questioning of witnesses; and
(b)the apparent identification by the learned trial judge with the prosecution.
2. A substantial miscarriage of justice occurred due to the admission of ‘other misconduct evidence’ which:
(a) pre-dated the first charged act by approximately six to eight years; and
(b) post-dated the charged acts.
3. A substantial miscarriage of justice occurred as the learned trial judge’s directions to the jury concerning the use of ‘other misconduct evidence’ did not adequately protect against the risk that the jury might engage in tendency reasoning.
4. A substantial miscarriage of justice occurred as a result of the learned trial judge directing the jury that they could use evidence of the complainant’s distress as indirect evidence supporting the prosecution case…

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 Seccull v The King

Details

AGLC: Seccull v The King [2022] VSCA 219
Case: [2022] VSCA 219
Decision Date: 30 September 2022

CaseChat Overview and Summary

The applicant, Seccull, appealed against his conviction for rape and associated charges, arguing that the trial judge had misdirected the jury in relation to the evidence of the complainant's distress. The case was heard in the Supreme Court of Appeal, where the applicant sought to have his conviction overturned and a new trial ordered. The central legal issue was whether the trial judge's direction to the jury about the use of the complainant's distress as supporting evidence was correct, and if the judge's failure to provide direction as to the weight to be given to such evidence constituted a misdirection. The court considered relevant sections of the Evidence Act 2008 and prior case law, including Paull v The Queen, R v Flannery, R v Sailor, and R v Meyer.

The court examined the trial judge's directions to the jury and found that the judge had misdirected them by stating that the evidence of the complainant's distress could be used as supporting evidence, without providing direction as to the weight to be given to it. This misdirection was held to be significant and capable of affecting the outcome of the trial, as it potentially allowed the jury to place undue emphasis on the complainant's distress. The court held that the applicant's appeal should be allowed, and a new trial ordered, in light of the misdirection identified. The application for leave to appeal was granted, and the conviction was quashed.

The court ordered a new trial for the applicant, Seccull, due to the misdirection of the jury by the trial judge regarding the use of the complainant's distress as supporting evidence. The court held that the misdirection was significant and capable of affecting the outcome of the trial, and therefore a new trial was warranted to ensure a fair trial for the applicant. The appeal was allowed, and the conviction was quashed, with directions for a new trial to be held.

Orders