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Hill, Ben v The Queen [2021] VSCA 316

Victorian Court of Appeal
Kyrou and T Forrest JJA and Macaulay AJA

Hill, Ben v The Queen

Judgment Date: 
18 November 2021

CRIMINAL LAW - Appeal - Conviction and sentence - Sexual penetration of a child under 16 - Indecent act with or in the presence of a child under 16 - Substantial miscarriage of justice - Whether conviction was unreasonable or cannot be supported having regard to the evidence - Whether inconsistencies and improbabilities in prosecution case individually or in combination made jury's verdict unreasonable - Credibility of independent witness had no impact on credibility of complainant - Evidence ruled inadmissible in previous trial led in retrial - Leading of inadmissible evidence amounted to error or irregularity which may have made a difference to outcome of trial - Crimes Act 1958 ss 45(1), 47(1), Criminal Procedure Act 2009 s 276(1)(a)-(b); M v The Queen (1994) 181 CLR 487, Pell v The Queen (2020) 268 CLR 123, Baini v The Queen (2012) 246 CLR 469 applied - Unnecessary to consider application for leave to appeal against sentence - Leave to appeal against conviction granted - Appeal against conviction allowed - Retrial ordered.