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Stephen Paull v The Queen

Stephen Paull v The Queen

Case [2021] VSCA 339 7 December 2021

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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 1^st day of May 1978 and the 31^st 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 1^st day of April 1959 and the 28^th 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…

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 Stephen Paull v The Queen

Details

AGLC: Paull v The Queen [2021] VSCA 339
Case: [2021] VSCA 339
Decision Date: 7 December 2021

CaseChat Overview and Summary

In the High Court of Australia, Stephen Paull appealed against his conviction for buggery, which occurred in 1978 and 1979 when the victim was aged 10 or 11 years. The case before the court was a matter of whether the jury's verdict was unreasonable or unsupported by the evidence, as well as whether the trial judge had misdirected the jury regarding the complainant's distress potentially supporting his evidence. Paull sought leave to appeal, arguing that his conviction was flawed based on these grounds.

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.

Orders