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Thomas (a pseudonym) v The King

Thomas (a pseudonym) v The King

Case [2023] VSCA 87 21 April 2023

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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).
For the…

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 Thomas (a pseudonym) v The King

Details

AGLC: Thomas (a pseudonym) v The King [2023] VSCA 87
Case: [2023] VSCA 87
Decision Date: 21 April 2023

CaseChat Overview and Summary

The applicant, Thomas (a pseudonym), appealed against his conviction for one count of committing an indecent act with a child under 16 and two counts of sexual penetration of a child under 16. The matter was heard in the High Court of Australia. The central issue in the appeal was whether the trial judge should have excluded the evidence of a witness, who had discussed the alleged offending with the complainant between the witness’ first and second video and audio recording of her evidence, pursuant to section 137 of the Evidence Act 2008. The applicant did not make any application at trial to exclude the evidence. Another issue was whether the verdicts were unsafe and unsatisfactory having regard to the whole of the evidence.

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