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Ward v The King

Ward v The King

Case [2025] VSCA 101 12 May 2025

Appeal

Jurisdiction

Admissibility of Evidence

Compensatory Damages

Contempt of Court

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0225

TERRENCE WARD	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2024
DATE OF JUDGMENT:	12 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 101
JUDGMENT APPEALED FROM:	DPP v Ward (County Court of Victoria, Judge O’Connell, 7 February 2023) (Conviction); DPP v Ward (County Court of Victoria, Judge Mullaly, 15 December 2022) (Tendency Ruling).

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CRIMINAL LAW – Appeal – Conviction – Indecent assault – Sexual penetration of a person aged between 10 and 16 – Sexual penetration of a person aged between 10 and 16 who was under care, supervision or authority – Sexual penetration of a child under 16 – Gross indecency – Whether jury verdicts unreasonable or cannot be supported having regard to evidence – Whether significant infirmities in complainant’s evidence – Infirmities in complainant’s evidence explicable by effluxion of time – Judge properly directed jury on forensic disadvantage – Whether key witness’ evidence properly characterised as unchallenged – Whether key witness’ evidence alibi evidence – Witness’ evidence not so cogent as to render doubt as to applicant’s guilt – Witness’ evidence not unchallenged alibi evidence – Jury not bound to accept witness’ evidence – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Whether prosecutor’s comments in closing submissions created unacceptable risk of substantial miscarriage of justice – Whether prosecutor invited jury to speculate about matters not in evidence – Whether prosecutor’s closing address contained improper remarks apt to lead jury into error – No error in prosecutor’s closing address.

CRIMINAL LAW – Appeal – Conviction – Whether judge erred in ruling that evidence of complainant’s tendency to lie and make up false allegations between ages 5 and 16 was inadmissible – Whether judge wrongly attributed concessions to defence counsel – Proposed tendency evidence not of significant probative value – Judge was correct to refuse application.

Evidence Act 2008, ss 97, 135.

Palmer v The Queen (1998) 193 CLR 1; Pell v The Queen (2020) 268 CLR 123; SKA v The Queen (2011) 243 CLR 400; GAX v The Queen (2017) 91 ALJR 698; Tyrrell v The Queen [2019] VSCA 52; M v The Queen (1994) 181 CLR 487, considered.

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Counsel
Applicant:		Mr D Mence
Respondent:		Mr R Gibson KC with Ms J Poole
Solicitors
Applicant:	James Dowsley & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction

The evidence

First incident

Second incident

Third and fourth incidents

Fifth incident

Sixth incident

Seventh incident

Eighth incident

MMW

Applicant’s record of interview

Ground 1: Unreasonable verdicts

Applicant’s submissions

Respondent’s submissions

Consideration of ground 1

Principles

GC’s evidence

Other uncertainties/inconsistencies

Ground 2: Prosecutor’s comments in closing submissions

Applicant’s submissions

Respondent’s submissions

Consideration of ground 2

Ground 3: Ruling on tendency evidence

The evidence in question

The Ruling

Applicant’s submissions

Respondent’s submissions

Consideration of ground 3

Disposition

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 Ward v The King

Details

AGLC: Ward v The King [2025] VSCA 101
Case: [2025] VSCA 101
Decision Date: 12 May 2025

CaseChat Overview and Summary

The appeal in Ward v The King was brought by the applicant against his conviction and sentence for indecent assault and gross indecency. The applicant was found guilty of sexually penetrating a child under 16 who was under his care, supervision or authority. The case was heard in the Supreme Court of Victoria. The applicant argued that the jury's verdicts were unreasonable or could not be supported given the evidence, and that there were significant infirmities in the complainant's evidence which were not adequately explained by the passage of time. The applicant also contended that the judge incorrectly directed the jury on the forensic disadvantage, and that the key witness' evidence was improperly characterised as unchallenged alibi evidence.

The court considered whether the jury's verdicts were unreasonable or unsupported by the evidence, and whether the judge's directions to the jury were correct. The court also examined whether the key witness' evidence was properly characterised as unchallenged alibi evidence, and whether the prosecutor's comments in their closing submissions created an unacceptable risk of a substantial miscarriage of justice. The court found that the jury's verdicts were not unreasonable or unsupported, and that the judge's directions were correct. The court also found that the key witness' evidence was not unchallenged alibi evidence, and that the prosecutor's comments did not create an unacceptable risk of a substantial miscarriage of justice.

The court further considered whether the judge erred in ruling that evidence of the complainant's tendency to lie and make up false allegations between the ages of 5 and 16 was inadmissible, and whether the judge wrongly attributed concessions to defence counsel. The court found that the proposed tendency evidence was not of significant probative value, and that the judge was correct to refuse the application. The applicant's appeal was dismissed, and leave to appeal to the High Court was refused.

The final orders of the court were that the applicant's conviction and sentence for indecent assault and gross indecency were upheld, and that the applicant's application for leave to appeal to the High Court was refused.

Orders