| 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
SN
First incident
Second incident
Third and fourth incidents
Fifth incident
Sixth incident
Seventh incident
Eighth incident
GC
MP
MMW
NP
RW
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
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- AGLC
- Ward v The King [2025] VSCA 101
- Case
- [2025] VSCA 101
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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