[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, T FORREST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 July 2019
DATE OF JUDGMENT:	31 July 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 168
JUDGMENT APPEALED FROM:	[2018] VCC 691 (Judge Tinney)

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CRIMINAL LAW – Appeal – Conviction – Indecent assault – Gross indecency with a person under 16 – Possession of child pornography – Whether substantial miscarriage of justice occurred because failure of trial judge to give unreliability warning to jury – Delay in prosecuting applicant – Complainant’s age at time of alleged offending – Intervening mental illness – Leave to appeal granted – Appeal allowed – Retrial ordered – Hudson v The Queen [2017] VSCA 122 considered – Jury Directions Act 2015 s 32.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr M FitzGerald	Mr J Taaffe, Doogue + George
For the Respondent	Mr J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA
WEINBERG JA:

After a jury trial on the first indictment, the applicant was convicted of two charges of indecent assault and one charge of gross indecency with a person under 16. The applicant was acquitted by direction of two counts of sexual penetration of a child. On a separate indictment, the applicant pleaded guilty to one charge of possession of child pornography. The table below sets out the sentences imposed, the maximum sentences available, the cumulation of sentences, the total effective sentence and the non-parole period.

Charge	Offence	Maximum	Sentence	Cumulation
Indictment G13538462.2
1.	Indecent assault Crimes Act 1958 s 44(1)	5 years’ imprisonment	20 months’ imprisonment	8 months’ imprisonment
2.	Gross indecency with a person under 16 Crimes Act 1958 s 50(1)	3 years’ imprisonment	15 months’ imprisonment	6 months’ imprisonment
5.	Indecent assault Crimes Act 1958 s 44(1)	5 years’ imprisonment	2 years’ imprisonment	Base
Indictment G13538462.3
1.	Possession of child pornography Crimes Act 1958 s 70(1)	5 years’ imprisonment	21 months’ imprisonment	10 months’ imprisonment
Total effective sentence:		4 years’ imprisonment
Non-parole period:		2 years and 6 months’ imprisonment
Pre-sentence detention:		11 days
Section 6AAA statement (only in relation to indictment G13538462.3): 2 years and 9 months’ imprisonment
Other relevant orders: Sentenced as a serious sexual offender on charge 2 pursuant to s 6F of the Sentencing Act 1991 and life reporting under the Sex Offender Registration Act 2004.

The offending on the first indictment was alleged to have occurred between 1987 and 1993. The complainant, who is the applicant’s nephew, was aged between six and 13 years during the offending period. There is one ground of appeal, which reads:

Ground 1 — A substantial miscarriage of justice occurred because of the failure of the trial judge to direct 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 Wade (a pseudonym) v The Queen

Details

AGLC: James Wade (a pseudonym)[1] v The Queen [2019] VSCA 168
Case: [2019] VSCA 168
Decision Date: 31 July 2019

CaseChat Overview and Summary

In this case, the appellant, Wade (a pseudonym), appealed against his conviction for indecent assault, gross indecency with a person under 16, and possession of child pornography. The conviction was delivered by the County Court of Victoria and subsequently confirmed by the Court of Appeal. The appeal raises significant questions regarding the adequacy of the trial judge's directions to the jury, specifically the failure to provide an unreliability warning, which may have prejudiced the jury against the appellant.

The central legal issues before the court were whether the trial judge's failure to give an unreliability warning to the jury amounted to a substantial miscarriage of justice, and whether other factors, including the delay in prosecuting the appellant, the complainant's age at the time of the alleged offences, and the appellant's intervening mental illness, further contributed to a miscarriage of justice. The court also considered the applicability of the Jury Directions Act 2015, particularly section 32, which requires the court to direct the jury on the unreliability of evidence where necessary.

The court found that the trial judge's failure to provide the unreliability warning constituted a substantial miscarriage of justice. The court held that the warning was necessary given the significant delay in prosecuting the appellant, the complainant's young age at the time of the alleged offences, and the appellant's intervening mental illness. These factors created substantial doubts about the reliability of the complainant's evidence. The court further noted that the unreliability warning would have assisted the jury in properly evaluating the evidence. In light of these findings, the court granted leave to appeal and allowed the appeal, ordering a retrial. The court emphasised that the failure to give the unreliability warning was a critical error that could not be ignored.

In conclusion, the court ordered a retrial of the appellant on the charges of indecent assault, gross indecency with a person under 16, and possession of child pornography. The court's decision highlights the importance of ensuring that juries are properly directed on the reliability of evidence, particularly in cases involving significant delays in prosecution and other factors that may affect the reliability of the evidence.

Orders