| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0028 |
| PETER THOMAS (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]This judgment has been anonymised by the adoption of pseudonyms to ensure that there is no possibility of identification of a victim of sexual offending.
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| JUDGES: | T FORREST, MACAULAY and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 February 2023 |
| DATE OF JUDGMENT: | 21 April 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 87 |
| JUDGMENT APPEALED FROM: | DPP v Thomas (a pseudonym) (Unreported, County Court of Victoria, Judge Chettle, 19 October 2021) |
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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of one count of committing indecent act with a child under 16 and two counts of sexual penetration of a child under 16 – Complainant discussed offending with witness between witness’ first and second video and audio recording of her evidence – Whether trial judge should have excluded witness’ evidence pursuant to s 137 Evidence Act 2008 – Applicant made no application at trial to exclude the evidence − Whether verdicts unsafe and unsatisfactory having regard to the whole of the evidence – Leave to appeal refused.
Evidence Act 2008, section 137; M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; Em v The Queen (2007) 232 CLR 67; Murdoch (a pseudonym) v The Queen (2013) 40 VR 451; SLS v The Queen (2014) 42 VR 64; IMM v The Queen (2016) 257 CLR 300; R v Bauer (2018) 266 CLR 56, considered.
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| Counsel | |||
| Applicant: | Mr CK Wareham | ||
| Respondent: | Ms EH Ruddle KC | ||
Solicitors | |||
| Applicant: | O’Brien & Smith Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
T FORREST JA
MACAULAY JA
TAYLOR JA:
Introduction
The applicant is currently 44 years of age. On 5 October 2021 he was convicted of one charge of committing an indecent act with a child under 16 years,[2] and two charges of sexual penetration of a child under 16 years,[3] following a trial by jury in the County Court. He was sentenced by the Judge to a total effective sentence of 11 years and 6 months’ imprisonment, not to be eligible for parole for a period of 7 years and 6 months.
[2]Contrary to s 47(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences Act) 1991, with a maximum penalty of 10 years’ imprisonment.
[3]Contrary to s 45(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences Act) 1991, with a maximum penalty of 25 years’ imprisonment.
The applicant seeks leave to appeal his conviction on two grounds: first, that a substantial miscarriage of justice occurred due to the erroneous admission of the evidence of the complainant’s school friend, EE;[4] and, secondly, that the verdicts were unsafe and unsatisfactory having regard to the totality of the evidence.[5]
[4]Criminal Procedure Act 2009, s 276(1)(b).
[5]Criminal Procedure Act 2009, s 276(1)(a).
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- AGLC
- Thomas (a pseudonym) v The King [2023] VSCA 87
- Case
- [2023] VSCA 87
- Decision Date
CaseChat Overview and Summary
The Court considered the authorities on the admissibility of evidence obtained through discussions between a witness and a complainant, such as M v The Queen, Libke v The Queen, Em v The Queen, Murdoch (a pseudonym) v The Queen, SLS v The Queen, IMM v The Queen, and R v Bauer. The Court held that the trial judge did not err in admitting the evidence of the witness, as the discussion between the witness and the complainant did not amount to a significant risk of unfairness under section 137 of the Evidence Act 2008. The Court also held that the verdicts were safe and satisfactory, having regard to the whole of the evidence. Therefore, the applicant’s appeal was dismissed, and leave to appeal was refused.
The final orders of the Court were that the appeal be dismissed and that leave to appeal be refused. The conviction and sentence of the applicant remained unchanged.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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