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Wade (a pseudonym) v The Queen

Wade (a pseudonym) v The Queen

Case [2018] VSCA 304 16 November 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0096

EDMUND WADE (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of the identification of the victim of alleged sexual offending, this judgment has been anonymised by the adoption of a pseudonym in the place of the name of the applicant.

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JUDGES:	KYROU and T FORREST JJA and TAYLOR AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 October 2018
DATE OF JUDGMENT:	16 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 304

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CRIMINAL LAW – Appeal – Conviction – Guilty verdict on one of six charges of indecent act with child under 16 – Whether guilty verdict unreasonable – Complainant and applicant first cousins – Alleged offending occurred when complainant between 7 and 10 years of age, applicant between 15 and 18 – Whether jury bound to have doubt about complainant’s veracity and reliability – Appeal allowed – Judgment of acquittal entered – Criminal Procedure Act 2009 s 276(1)(a).

CRIMINAL LAW – Appeal – Conviction – Guilty verdict on one of six charges of indecent act with child under 16 – Whether verdicts inconsistent and irreconcilable – Appeal allowed – Judgment of acquittal entered – MacKenzie v The Queen (1996) 190 CLR 348 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C A Boston	Doogue + George Defence Lawyers
For the Respondent	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA
T FORREST JA
TAYLOR AJA:

Introduction and summary

After a trial before a County Court jury on six charges of indecent act with a child under the age of 16, contrary to s 47(1) of the Crimes Act 1958, the applicant was found guilty on one of those charges (charge 2) and not guilty on the remaining charges. After a plea hearing, he was sentenced, without conviction, to a community correction order for 18 months.

The applicant and the complainant are first cousins — the applicant’s mother and the complainant’s father are siblings. The offending the subject of the six charges was alleged to have occurred between 1 January 2004 and 11 February 2007, when the applicant was between 15 and 18 years of age and the complainant was between 7 and 10.

The applicant seeks leave to appeal against the guilty verdict on charge 2 on the grounds that the verdict is ‘unsafe or unsatisfactory’ (ground 1) and ‘inconsistent with the acquittals on the remaining charges’ (ground 2).

Ground 1 is a shorthand reference to s 276(1)(a) of the Criminal Procedure Act 2009 (‘CPA’) which provides that the Court of Appeal must allow an appeal against conviction if the appellant satisfies the Court that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’. For the purposes of s 276(1)(a), s 3 defines ‘conviction’ as including ‘a finding of guilt by a court, whether or not a conviction is recorded’.

For the reasons that follow, the application for…

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: Wade (a pseudonym) v The Queen [2018] VSCA 304
Case: [2018] VSCA 304
Decision Date: 16 November 2018

CaseChat Overview and Summary

The appellant, Wade, was convicted of one count of indecent act with a child under 16 years, against a complainant who was his first cousin. The offending occurred when the complainant was between 7 and 10 years of age, and the appellant was between 15 and 18 years of age. Wade appealed against his conviction to the court of criminal appeal, arguing that the verdict was unreasonable and that the jury should have had a doubt about the complainant's veracity and reliability. The central issue in this appeal was whether the jury was bound to have a doubt about the complainant's credibility, given their familial relationship and the age difference between the parties.

The court found that the relationship between the complainant and the appellant, being first cousins, was a significant factor that warranted consideration in assessing the reliability of the complainant's evidence. The court held that the jury should have had a doubt about the complainant's veracity and reliability due to the familial relationship and the age difference between the parties. Additionally, the court found that the verdicts were inconsistent and irreconcilable, leading to the conclusion that the appeal should be allowed. The court applied the principles set out in MacKenzie v The Queen, which held that when the evidence is susceptible to more than one conclusion, the jury should have had a reasonable doubt about the guilt of the accused.

As a result of the appeal, the court allowed the appeal and entered a judgment of acquittal in relation to the conviction. The court found that the evidence was not sufficient to prove the guilt of the appellant beyond a reasonable doubt, and that the jury should have had a doubt about the complainant's credibility. The court's decision was based on the principles of criminal law and the need to ensure that a person is not convicted of a crime unless their guilt is proven beyond a reasonable doubt. The appeal was allowed, and the conviction was quashed.

Orders