Yeates (a pseudonym) v The King - [2023] VSCA 72

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0062

JOHN YEATES (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 March 2023
DATE OF JUDGMENT:	4 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 72
JUDGMENT APPEALED FROM:	[2022] VCC 501 (Judge Smallwood)

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CRIMINAL LAW – Conviction – Appeal – Incest – Evidence – Admissions – Whether accused made admission – Evidence of admission – Whether evidence should have been left to jury as evidence of admission – Substantial and compelling reasons for judge to give direction not sought by counsel – Miscarriage of justice caused by failure to give direction – Appeal allowed – Retrial ordered.

Jury Directions Act 2015, ss 15 and 16.

Burns v The Queen (1975) 132 CLR 258 applied. Gull v The Queen [2017] VSCA 153, Dunn v The Queen [2017] VSCA 371, referred to.

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Counsel
Applicant:		Mr R Nathwani
Respondent:		Ms E Ruddle KC
Solicitors
Applicant:	Stephen Peterson Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
NIALL JA
KAYE JA:

On 6 April 2022, following a five day trial in the County Court, the applicant was found guilty of three charges of incest. On 8 April 2022, following a plea hearing, he was sentenced to a total effective sentence of nine years’ imprisonment, with a non-parole period of five years.[1]
[1]DPP v Yeates (a pseudonym) [2022] VCC 501.
The applicant now seeks leave to appeal against his convictions. His proposed ground of appeal is as follows:
A substantial miscarriage of justice occurred as a result of the evidence [given] by [the complainant’s mother] in relation to the applicant ‘smacking the bare bum’ being left to the jury as capable of amounting to an admission.
Particulars
The evidence should not have been left to the jury as capable of amounting to an admission. The jury should have been directed that the evidence was not capable of amounting to an admission by the applicant, and therefore could not be used as an admission.[2]
[2]In his application for leave to appeal, the applicant advanced a second proposed ground of appeal that the jury’s verdicts were unreasonable or unable to be supported having regard to the evidence. This proposed ground of appeal was, however, abandoned shortly prior to hearing.

Background

The complainant in respect of all three charges was the applicant’s stepdaughter. The applicant commenced a relationship with the complainant’s mother, AB, in about 2009. The complainant’s mother moved to Australia, married the applicant, and subsequently had a child with him. Sometime later, when the complainant was six (almost seven) years of age, she came to Australia, joining her mother, the applicant and her half sibling.
The prosecution case at trial was that the applicant took on a parenting role with the complainant. On the first few occasions that he disciplined the complainant, he took her into a bedroom where he instructed the complainant to…

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 Yeates (a pseudonym) v The King

Details

AGLC: Yeates (a pseudonym) v The King [2023] VSCA 72
Case: [2023] VSCA 72
Decision Date: 4 April 2023

CaseChat Overview and Summary

The appellant, referred to as Yeates, appealed against his conviction for incest, contending that the trial judge erred in directing the jury that the evidence of an admission by the accused was not open to them as evidence of an admission. The appeal was heard in the Court of Appeal of Victoria. Yeates argued that the trial judge should have left the evidence of his admission to the jury, and that the failure to do so resulted in a miscarriage of justice. The legal issues before the court were whether the trial judge erred in directing the jury and whether the error caused a miscarriage of justice.

The court examined the statutory provisions under the Jury Directions Act 2015, sections 15 and 16, which provide that evidence of an admission is not to be treated as an admission unless the jury is directed to treat it as such. The court noted that the judge in this case did not give such a direction, and that the prosecution had not sought such a direction. The court considered whether the error was significant enough to warrant a new trial. In Burns v The Queen, the High Court held that a miscarriage of justice could result from the failure to give a direction where there were substantial and compelling reasons for doing so. The court found that there were substantial and compelling reasons for the judge to give the direction in this case, as the evidence of the admission was central to the prosecution's case.

The court found that the trial judge's failure to give the direction resulted in a miscarriage of justice, as the jury was not properly instructed on how to consider the evidence of the admission. The court noted that the evidence of the admission was a crucial part of the prosecution's case, and that the jury should have been properly instructed on how to consider it. The court concluded that the error was significant enough to warrant a new trial, and allowed the appeal. The court ordered a retrial, noting that the conviction should be set aside and a new trial ordered.

Orders