R v Toeke CA44/06

In the case of CA44/06, the appellant, Michael Toeke, appealed against his conviction for sexual violation by digital penetration. The appeal was based on the grounds of a miscarriage of justice due to radical errors made by trial counsel and a failure to respond timely to a jury request to view the complainant's evidential interview video. The incident in question occurred during the Christmas period in either 1997 or 1998, when the complainant was either six or seven years old. The complainant alleged that Toeke digitally penetrated her vagina when she went into the house to get a towel while he was lying on a couch in the living room. The primary evidence was the complainant's evidential video interview conducted in December 2004, supplemented by oral evidence at trial. Toeke denied the allegations, claiming he only touched the complainant on her leg as she brushed past him outside the house on the doorstep.

The primary legal issue in the appeal was whether trial counsel's failure to put Toeke's case to the complainant and follow instructions led to a miscarriage of justice. Trial counsel failed to confront the complainant about the critical difference in where the contact occurred, which was a significant departure from Toeke's account. The court held that this failure could have led the jury to believe that Toeke had been alone in the house with the complainant, impacting negatively on his denial. The court found that the failure to confront the complainant directly on a crucial point could have led to an unsafe verdict and could not be minimised.

The court also considered the issue of the jury's request to view the video interview again. The jury had comprehensive records of all statements and could reach a proper verdict without viewing the video again. Therefore, the court rejected this ground of appeal. Ultimately, the court allowed the appeal, quashed the conviction, and ordered a new trial.