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Tandy (a pseudonym) v The Queen

Tandy (a pseudonym) v The Queen

Case [2016] VSCA 229 21 September 2016

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0096

LIONEL TANDY (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST and BEACH JJA, and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 September 2016
DATE OF JUDGMENT:	21 September 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 229
JUDGMENT APPEALED FROM:	DPP v [Tandy] (Unreported, County Court of Victoria, Judge Sexton, 22 June 2015 (Conviction); 22 April 2016 (Sentence))

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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 16 – Whether verdict unsafe and unsatisfactory – Inconsistencies between complainant’s evidence and the evidence of alleged eye-witness – Credibility and reliability of complainant’s evidence – Whether verdicts inconsistent – Whether Kilby direction required – Appeal allowed – Judgment of acquittal entered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C T Carr	Brugman Mellas
For the Crown	Ms D I Piekusis	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
CAVANOUGH AJA:

Introduction

At the conclusion of oral argument on 15 September 2016, the Court unanimously granted the applicant leave to appeal against conviction. By a majority, the Court ordered that the appeal be allowed; that the relevant conviction in the County Court be set aside; and that a judgment of acquittal be entered.[2]
[2]Criminal Procedure Act 2009, s 277(1).

The Court indicated that it would provide reasons for those orders. These are our reasons.

Conviction and grounds of appeal

On 22 June 2015, a jury in the County Court found the applicant guilty of sexual penetration of a child under 16 who was under his care, supervision or authority (charge 2).[3] The indictment alleged that the offence occurred on a date unknown between a day in November 2007 and a day in November 2008, when the complainant, ‘BT’, was aged ten years. The jury found the applicant not guilty of another similar charge which related to a two year period between November 2004 and November 2006, when BT was aged between seven and nine years (charge 1).
[3]Crimes Act 1958, s 45(1).

Sentencing was delayed, mainly because of the applicant’s ill health. On 22 April 2016, the trial judge sentenced the applicant to be imprisoned for four years. Somewhat unusually, the judge fixed a non-parole period of 12 months.

The applicant sought leave to appeal against conviction on four grounds as follows:

1. The Learned Trial Judge erred in failing to direct the jury that they could take the delay in complaint, into account, when assessing the Complainant’s credibility.
2. A substantial miscarriage of justice has occurred in circumstances where the Learned Prosecutor effectively invited the jury to accept that:
(a) the Pretext call contained evidence of an adoptive admission; and
(b) the Applicant had deliberately lied in the Record of Interview to avoid being implicated in the offending subject of Charge…

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 Tandy (a pseudonym) v The Queen

Details

AGLC: Tandy (a pseudonym) v The Queen [2016] VSCA 229
Case: [2016] VSCA 229
Decision Date: 21 September 2016

CaseChat Overview and Summary

Tandy, also referred to as a pseudonym, has appealed against his conviction for the sexual penetration of a child under the age of 16. The appeal was heard and determined by the court. The central issue before the court was whether the verdict reached by the jury was both safe and satisfactory, given the inconsistencies present between the complainant's testimony and the evidence provided by the alleged eyewitness. The court was also tasked with evaluating the credibility and reliability of the complainant's evidence, as well as determining whether the verdicts were inconsistent. Additionally, the court considered whether a Kilby direction was necessary in this case.

The court conducted a thorough examination of the evidence presented, focusing on the discrepancies between the complainant's testimony and the eyewitness account. The court found that these inconsistencies were significant and undermined the reliability of the complainant's evidence. Furthermore, the court assessed the credibility of the complainant's evidence and concluded that it was not sufficiently reliable to support a conviction. The court also determined that the verdicts were inconsistent with the evidence presented. Based on these findings, the court decided that a Kilby direction was required to ensure a fair trial. Consequently, the appeal was allowed, and the court entered a judgment of acquittal for Tandy.

The court's decision to allow the appeal and enter a judgment of acquittal was based on the significant inconsistencies in the evidence, the unreliable nature of the complainant's testimony, and the inconsistency of the verdicts. The court's ruling underscores the importance of ensuring that a conviction is both safe and satisfactory, particularly when there are substantial discrepancies in the evidence presented. The court's decision to grant a Kilby direction further highlights the need for a fair trial and the importance of carefully evaluating the credibility and reliability of the evidence in criminal cases.

Orders