SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0156
| STEPHEN PAULL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, KAYE and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 November 2021 |
| DATE OF JUDGMENT: | 7 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 339 |
| JUDGMENT APPEALED FROM: | DPP v Paull (Unreported, County Court of Victoria, Judge Mason, 22 August 2019) (Conviction) |
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CRIMINAL LAW – Appeal – Conviction – Application for leave to appeal – Buggery – Offending in 1978 and 1979 involving boy aged 10 or 11 years – Whether verdict unreasonable or cannot be supported by the evidence – Whether judge misdirected the jury that complainant’s distress might support his evidence — Extension of time granted – Leave to appeal granted – Appeal allowed – New trial ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr C Terry | Stary Norton Halphen |
| For the Respondent: | Ms E Ruddle QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
KAYE JA
NIALL JA:
Introduction
Following a trial, on 22 August 2019 a jury empanelled in the County Court found the applicant guilty of one charge of buggery, charged in the indictment as follows:
CHARGE 1 The Director of Public Prosecutions charges that STEPHEN FREDRICK LLOYD PAULL at YAPEEN in Victoria between the 1st day of May 1978 and the 31st day of December 1979 committed the crime of buggery with [SMA] a person under the age of 14 years.
NOTE: Charge 1 is a Course of Conduct Charge
Statement of Offence - Buggery contrary to s 68(l) of the Crimes Act 1958, as in operation between the 1st day of April 1959 and the 28th day of February 1981.
On 24 April 2020, the trial judge sentenced the applicant to six years’ imprisonment, with a non-parole period of four years. In the ordinary course, any notice of application for leave to appeal against conviction should have been filed by 22 May 2020.[1] No attempt was made to file the relevant notice, however, until 12 August 2020. As a result, the applicant requires an extension of time. The respondent opposes the grant of an extension.
[1]Section 275(1) of the Criminal Procedure Act 2009 requires a notice of application for leave to appeal against conviction to be filed ‘within 28 days after the day on which the person is sentenced or any extension of that period granted under section 313’.
Initially, the applicant sought to rely on a single ground of appeal as follows:
Ground 1 — The verdict of the jury on charge one is unreasonable and/or cannot be supported by the evidence.
Particulars: The evidence in the trial, taken as a whole, did not prove beyond reasonable doubt that the applicant was guilty of the charge.
It emerged in the course of the hearing in this Court, however, that the judge’s charge to the jury arguably contained a serious misdirection as to the use that could be made of the complainant’s distress. As a…
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- AGLC
- Paull v The Queen [2021] VSCA 339
- Case
- [2021] VSCA 339
- Decision Date
CaseChat Overview and Summary
The legal issues the court was required to decide involved the assessment of the sufficiency and reasonableness of the evidence presented at trial and the evaluation of whether the trial judge's directions to the jury were appropriate. Specifically, the court needed to determine if the judge's comments on the complainant's distress might have improperly influenced the jury's assessment of the evidence. The central question was whether the trial judge's directions could have misled the jury in a way that affected the safety of the conviction.
The High Court found that the trial judge's directions might have constituted a misdirection, which could have influenced the jury's assessment of the complainant's evidence. The court concluded that the judge's comments on the complainant's distress could have been seen as an implicit suggestion that the distress supported the credibility of the complainant's testimony. Given the potential for this misdirection to affect the safety of the conviction, the court granted leave to appeal. The appeal was allowed, and a new trial was ordered to ensure that any potential errors in the original trial did not result in an unsafe or unsatisfactory outcome.
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Evidence
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