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Tyrell v The Queen

Tyrell v The Queen

Case [2019] VSCA 52 15 March 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0098

JOHN FRANCIS TYRRELL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE, NIALL and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 February 2019
DATE OF JUDGMENT:	15 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 52 First Revision: 16 April 2019
JUDGMENT APPEALED FROM:	DPP v Tyrrell (Unreported, County Court of Victoria 26 April 2018) (Judge Wraight)

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CRIMINAL LAW – Application for leave to appeal against conviction – Historical sex offences – Offences alleged between 1965 and 1966 – Applicant convicted of four charges of buggery and six charges of indecent assault – Applicant acquitted on two charges of buggery and two charges of indecent assault – Whether verdicts of guilty unreasonable and cannot be supported having regard to the evidence – Whether delay in prosecuting applicant resulted in unfair trial – Crown case solely reliant on evidence of complainant – Substantial inconsistencies in complainant’s evidence – Aspects of complainant’s evidence improbable – Effect of delay – Witnesses and evidence unavailable – Application for leave to appeal granted – Appeal allowed – Conviction and sentences quashed – Judgment and verdicts of acquittal entered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr P Doyle	Oxford Partners
For the Respondent:	Ms D Piekusis SC	Mr J Cain, Solicitor for Public Prosecutions

KAYE JA
NIALL JA
WEINBERG JA:

The applicant was charged on indictment with six counts of buggery (charges 2, 3, 4, 6, 10 and 14) and eight charges of indecent assault upon a male (charges 1, 5, 7, 8, 9, 11, 12 and 13). After a trial in the County Court, he was convicted of four charges of buggery, and six charges of indecent assault. He was acquitted on charges 4 (buggery), 11 (indecent assault), 13 (indecent assault) and 14 (buggery). He was sentenced to a total of 11 years’ imprisonment with a non-parole period of 6 years and 6 months. That sentence was constituted as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Indecent Assault Crimes Act1958, s 68(3)	10 years	2 years	6 months
2	Buggery Crimes Act 1958, s 68(1)	20 years	5 years	Base
3	Buggery Crimes Act 1958, s 68(1)	20 years	5 years	1 year
5	Indecent Assault Crimes Act1958, s 68(3)	10 years	2 years	6 months
6	Buggery Crimes Act 1958, s 68(1)	20 years	5 years	1 year
7	Indecent Assault Crimes Act1958, s 68(3)	10 years	2 years	6 months
8	Indecent Assault Crimes Act1958, s 68(3)	10 years	2 years	6 months
9	Indecent Assault Crimes Act1958, s 68(3)	10 years	2 years	6 months
10	Buggery Crimes Act 1958, s 68(1)	20 years	5 years	1 year
12	Indecent Assault Crimes Act1958, s 68(3)	10 years	2 years	6 months
Total Effective Sentence:		11 years
Non-Parole Period:		6 years and 6 months
Pre-sentence Detention Declared:		38 days
6AAA Statement:		N/A
Pursuant to s 6F…

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 Tyrell v The Queen

Details

AGLC: Tyrrell v The Queen [2019] VSCA 52
Case: [2019] VSCA 52
Decision Date: 15 March 2019

CaseChat Overview and Summary

The case of Tyrell v The Queen involved the applicant appealing against his conviction for multiple historical sex offences. The applicant was convicted of four charges of buggery and six charges of indecent assault, but acquitted on two charges of buggery and two charges of indecent assault. The appeal centred on the contention that the verdicts of guilty were unreasonable and could not be supported by the evidence presented. Additionally, the applicant argued that the delay in prosecuting him resulted in an unfair trial, as the Crown's case was solely dependent on the evidence of a single complainant. This complainant's evidence was marked by substantial inconsistencies and included aspects that were considered improbable. The delay also had significant effects, including the unavailability of witnesses and evidence that could have been crucial to the case.

The court had to determine whether the verdicts of guilty were unreasonable and whether the delay in prosecution had compromised the fairness of the trial. The applicant's argument was that the inconsistencies and improbabilities in the complainant's evidence, coupled with the unavailability of other evidence and witnesses due to the delay, meant that the guilty verdicts could not be sustained. The court had to consider the impact of the delay on the reliability of the evidence and the overall fairness of the trial process.

In granting the application for leave to appeal and allowing the appeal, the court found that the verdicts of guilty were indeed unreasonable and could not be supported by the evidence. The court recognised the significant impact of the delay on the availability of evidence and witnesses, which had a detrimental effect on the fairness of the trial. As a result, the applicant's convictions and sentences were quashed, and judgments and verdicts of acquittal were entered in his favour.

Orders