Court of Appeal orders new trial for man found guilty of incest in majority judgement

A man found guilty of incest and sexual abuse of a child will face a new trial, after a majority Court of Appeal judgement found the trial judge made an error when directing the jury.

The Victorian Supreme Court. Picture: NewsWire / Diego Fedele

A man found guilty of incest and sexual abuse of a child will face a new trial, after the trial judge made an error when directing the jury.

William Haynes, a pseudonym as the man cannot be identified for legal reasons, was found guilty in May last year of three charges of incest and two charges of indecent act with a child under 16 years of age.

Last week, a majority judgement handed down by Court of Appeal justices Richard Niall and Kristen Walker set aside that verdict and ordered a new trial.

An appeal hearing in the matter took place on August 28 in Geelong.

According to the facts set out in the judgement, the alleged abuse occurred between 2001 and 2004 in the Geelong region, when the alleged victim was around eight to 10 years old.

The woman first came forward in 2021 when she told her sister and aunt.

Shortly after she reported the matter to police.

Beyond the woman’s testimony, there was no corroborating evidence at trial regarding the alleged events.

Mr Haynes argued at trial that the woman was either mistaken or had fabricated the allegations.

During the trial, his lawyer asked the trial judge to provide a direction around forensic disadvantage, however the judge refused as he was not satisfied Mr Haynes was so disadvantaged.

According to the appeal judgement, Mr Haynes’ counsel argued he had “lost the chance to mount any defence other than a bare denial”.

In their majority judgement, justices Niall and Walker found Mr Haynes was significantly disadvantaged and the trial judge had erred in his decision not to provide that direction to the jury.

“The failure to give a direction constituted a substantial miscarriage of justice, so that the appeal must be allowed,” they wrote.

The justices found that while the lack of some elements – such as medical and forensic -wasn’t sufficient in this case, others such as the lack of opportunity to explore the circumstances of the offending, whereabouts of other witnesses, and the death of one witness, did constitute a disadvantage.

Justices Niall and Walker said the trial verdict should be set aside and a new trial ordered.

In a minority judgement, Justice Cameron Macaulay came to a different conclusion, writing that he would have granted leave to appeal but dismissed the appeal.

Justice Macaulay wrote that having more detail or specificity about the circumstances of the offending was unlikely to have affected the complainant’s evidence.

“It is common experience that when giving an account of sexual offending against them,

even soon after the occasions of offending, young children are often only able to give

broad and non-specific descriptions of the times of the offending,” he wrote.

“In substance, the reason for the lack of specificity in identifying dates is not because of

delay but, more likely, because the alleged offending was against a young child and

went undetected over a period of years.

“The applicant’s limited ability to challenge the prosecution case other than by denial lay in the very nature of the alleged offending.”

Originally published as Court of Appeal orders new trial for man found guilty of incest in majority judgement