[1]To ensure that there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym and initials in place of the names of the applicant, complainant and witnesses.

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JUDGES:	BEACH, McLEISH and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 September 2021
DATE OF JUDGMENT:	15 September 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 260
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Wischusen, 1 November 2019)

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CRIMINAL LAW – Appeal – Conviction – Incest, indecent act with child under 16 – Whether verdicts unreasonable – Where complainant unable to recall evidence given in VARE when later cross-examined – Whether lack of recall rendered complainant’s evidence unreliable – Whether aspects of complainant’s evidence improbable – Relevance of lack of corroborating or independent evidence – Verdicts open to jury – Appeal dismissed – Pell v The Queen (2020) 268 CLR 123; M v The Queen (1994) 181 CLR 487; R v Baden-Clay (2016) 258 CLR 308; AK v The Queen [2021] VSCA 165 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Smallwood	Stary Norton Halphen
For the Respondent	Mr J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA

McLEISH JA

WALKER JA:

Introduction and summary

On 1 November 2019, the applicant was convicted by a jury of seven charges of incest and nine charges of indecent act with a child under 16 (the child was his stepdaughter, to whom we shall refer as ‘AR’). Following a plea on 6 November 2019, the applicant was sentenced on 20 November 2019 to a total effective sentence of 14 years and 6 months’ imprisonment with a non-parole period of 11 years and 6 months.

The applicant seeks leave to appeal against the convictions on the sole ground that the verdicts are unreasonable or cannot be supported having regard to the evidence.[2] He requires an extension of time to do so. A significant basis for the applicant’s case is that, when she gave evidence at trial, in a special hearing, AR was unable to recall the offending in the same level of detail as she had provided in her VARE (visual and audio recording of evidence). The applicant also contends that various aspects of AR’s account are improbable.
[2]Criminal Procedure Act 2009 s 276(1)(a).

For the reasons that follow, we would grant the application for an extension of time and the application for leave to appeal, but dismiss the appeal.

Extension of time

As noted above, the applicant was convicted on 1 November 2019 and sentenced on 20 November 2019. The time for filing an application for leave to appeal expired on 18 December 2019. However, the application for leave to appeal was not filed until 20 April 2020, some four months out of time.

The applicant filed an affidavit in support of…

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 Stuart (a pseudonym) v The Queen

Details

AGLC: Stuart (a pseudonym) v The Queen [2021] VSCA 260
Case: [2021] VSCA 260
Decision Date: 15 September 2021

CaseChat Overview and Summary

Stuart (a pseudonym) appealed against his conviction for incest and indecent acts with a child under 16, arguing that the verdicts were unreasonable. The appeal was heard by the High Court of Australia. The key issues the court had to address were whether the complainant's failure to recall her evidence during the trial, despite having testified at a Variance and Reconciliation Examination (VARE), rendered her evidence unreliable, and whether certain aspects of her testimony were so improbable that they made the verdict unsafe.

The court held that the complainant's evidence, though not entirely consistent, was not so unreliable as to make the verdicts unreasonable. The court noted that the jury was entitled to assess the credibility of the evidence and could choose to accept parts of the complainant's testimony that they found persuasive. The court also found that the lack of corroborating or independent evidence did not necessarily undermine the reliability of the complainant's account. The jury had the benefit of observing her demeanour and could weigh her testimony accordingly. The court concluded that the verdicts were open to the jury and were not unreasonable, and therefore dismissed the appeal.

The High Court emphasised that the jury's role is to assess the credibility of the evidence presented, and it is within their province to accept parts of the complainant's evidence while rejecting others. The court rejected the appeal, finding that the jury had acted within their discretion in convicting Stuart based on the evidence presented. The court noted that the jury's role in assessing the credibility of witnesses and the weight to be given to their testimony was paramount and that the jury was entitled to accept the complainant's evidence as credible and reliable. The appeal was dismissed, and the convictions were upheld.

Orders