Trevor Parker (a pseudonym)[1] v The Queen
[2021] VSCA 22
•17 February 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0168
| TREVOR PARKER (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: | BEACH, EMERTON and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 February 2021 |
| DATE OF ORDERS: | 11 February 2021 |
| DATE OF JUDGMENT: | 17 February 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 22 |
| JUDGMENT APPEALED FROM: | DPP v [Trevor Parker (a pseudonym)] (Unreported, County Court of Victoria, Judge Pullen, 11 December 2018) |
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CRIMINAL LAW – Appeal – Conviction – Sexual offending – Crown concession – Substantial miscarriage of justice – Jury provided with inadmissible and prejudicial material – Jury inadvertently provided with unedited transcript containing evidence ruled inadmissible or agreed not to be led and recording discussion between counsel and the bench in the absence of the jury – Leave to appeal granted – Appeal allowed – Conviction set aside – Order for retrial.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G Connelly | Victoria Legal Aid |
| For the Respondent | Ms D Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
EMERTON JA
SIFRIS JA:
The applicant was convicted on 11 December 2018 on one charge of an indecent act with a child under 16, two charges of incest and two charges of false imprisonment. The charge of indecent act (Charge 1) and one charge of incest (Charge 2) were ‘course of conduct’ charges.
On 31 May 2019, the applicant was sentenced as follows:
Charge Offence Max Sentence Cumulation 1 Indecent act with or in the presence of a child under 16 (touching vagina of Kathleen Parker) between 6.9.1997 – 6.9.1998, as a course of conduct, s 47 Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991 10 yrs 4 years 1 year 2 Incest (digital penetration of vagina of Kathleen Parker) between 6.9.1998 and 6.9.2005, as a course of conduct, s 44(1) Crimes Act 1958 25 yrs 8 years Base 3 False imprisonment, (Kathleen Parker tied up in bedroom) between 6.9.2001 and 6.9.2002, common law 10 yrs 15 mths 6 months 4 False imprisonment, (Nicholas Parker tied up in upstairs bedroom) between 1.1.1997 and 1.10.2000, common law 10 years 18 mths 7 months 5 Incest (digital penetration of anus of Nicholas Parker) between 1.1.1997 and 1.10.2000, s 44(1) Crimes Act 1958 25 years 5 years 18 mths 6 Indecent act with or in the presence of a child under 16 (touching penis of Nicholas Parker) between 1.10.2000 – 23.11.2002, s 47 Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991 10 years Not guilty - Total Effective Sentence: 11 years and 7 months Non-Parole Period: 8 years and 10 months Pre-Sentence detention 171 days Other SSO on charges 2 and 5; SORA 2004, life reporting; forensic sample order.
The applicant is the biological father of the complainants, Kathleen Parker (‘Kathleen’) and Nicholas Parker (‘Nicholas’). The applicant and the mother of the complainants, AC, separated when the complainants were young. AC lived in Tasmania and the applicant lived in Melbourne with his parents. The charged acts allegedly occurred while the complainants were on access visits to Melbourne or while they were living with the applicant and grandparents.
Charge 1 was a ‘course of conduct’ charge of touching Kathleen on the vagina while she was in bed. The offending allegedly occurred when Kathleen was seven to eight years of age, during access visits over a period of eighteen months. Charge 2 involved the same conduct, but progressing to penetration of the vagina. This offending allegedly occurred from when Kathleen was eight until she was about 14, weekly when she was in the applicant’s care on access visits. Charge 3 was a specific instance of Kathleen being tied to a chair by the applicant. Charges 4 and 5 involved a single instance of digital penetration of Nicholas’ anus while he was tied up. Although Nicholas was unsure of his age at the time of the alleged incident, the dates on the indictment suggested that he was 12 or 13 years old at the time. Charge 6 was an allegation of touching Nicholas on the penis from behind.
At trial, the prosecution led evidence that Nicholas sexually abused Kathleen, that the applicant’s father (the children’s grandfather) sexually abused both Kathleen and Nicholas, and the applicant’s mother (the children’s grandmother) knew of the sexual abuse of Kathleen and did nothing to protect her. Nicholas complained of sexual abuse by his grandfather to the applicant’s then girlfriend, TH, who reported it to police and child protection workers. There was an investigation which resulted in Nicholas retracting his complaint against his grandfather.
Kathleen complained to TH about the applicant doing ‘stuff like grandpa did’. This was also reported. However, Kathleen told police and child protection workers that there was nobody who touched her on a part of her body that she did not think was okay and that it was not okay for anybody to touch her on the vagina.
Kathleen complained of sexual touching by her father to her school friend when she was in Year 8 and again when they had finished school.
At trial, the evidence given by the complainants, AC and the persons to whom complaint was made was pre-recorded and played to the jury. Expert evidence about responses to sexual abuse was presented to the jury in the same way. Only the police witnesses gave evidence in court. The pre-recorded evidence, with edits, along with the edited transcript was given to the jury to take into the jury room.
The defence adduced no evidence.
The applicant sought leave to appeal his conviction on Charges 1 to 5 on grounds based, broadly, on the accidental admission of parts of the pre-recorded evidence, the editing of pre-recorded evidence after it had been heard by the jury, the jury being given the pre-recorded evidence for its unsupervised use in the jury room, the judge’s interventions in cross-examination and on matters pertaining to the way in which Charge 3 was framed and prosecuted.
By Ground 1A in the notice of application for leave to appeal conviction, the applicant complained that a substantial miscarriage of justice was occasioned by the accidental admission of evidence that had been ruled inadmissible or agreed not to be led, with the result that inadmissible and prejudicial material was before the jury. The evidence referred to in the applicant’s written case was in the pre-recorded evidence of AC.
On the day of the hearing of the application for leave to appeal, the applicant sought and was granted leave to amend Ground 1A as follows:
Ground 1A:A substantial miscarriage of justice was occasioned by:
(a)the accidental admission of evidence that had been ruled inadmissible or agreed not to be led; and/or
(b)the accidental inclusion in the transcript provided to the jury of evidence that had been ruled inadmissible, agreed not to be led or which was not evidence in the trial
with the result that inadmissible and prejudicial material was before the jury.
The amendment — involving the insertion of the complaint in paragraph (b) — concerns the edited transcript (as opposed to the pre-recorded evidence) that was provided to the jury.
Crown concession
At the hearing, the Court was taken to parts of the edited transcript that was given to the jury to take into the jury room. That transcript contains evidence ruled inadmissible or agreed not to be led and records discussion between counsel and the bench in the absence of the jury about what would be before the jury. Some of that discussion is extensive. The inclusion of this material in the transcript that was provided to the jury was plainly inadvertent.
Having regard to the nature of the inadvertent inclusions, the Crown conceded that the provision of the poorly edited transcript to the jury resulted in a substantial miscarriage of justice and that the convictions on all counts should be set aside and a retrial directed.
Conclusion
Having read and considered the material for ourselves, we concluded that the concession was properly made, that the convictions should not stand and that the applicant should be retried. Accordingly, at the conclusion of oral argument, we made orders as follows:
1. Leave to appeal against conviction is granted and the appeal is allowed.
2. The convictions on charges 1, 2, 3, 4 and 5 are quashed, and the sentences on those charges are set aside. All other orders made in the County Court on 31 May 2019 are also set aside.
3. There be a retrial of the appellant on all charges.
4. The appellant is ordered to appear in the County Court at 9.00 am on 11 March 2021.
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