Victoria’s highest court has stopped a case against a man charged with sexually assaulting his stepdaughter after prosecutors failed to get a conviction from three juries and tried to launch a fourth trial.
The Court of Appeal last week ordered that a man known by the pseudonym Lincoln Porter should no longer be prosecuted over the alleged sexual assault of his stepdaughter, known as “MRD”, after he faced one trial and two subsequent retrials without conviction.
The man faced three juries in the County Court and was never convicted of any charge.Credit: Darrian Traynor
Porter, a US citizen, was set to face a fourth trial before his lawyers applied for a permanent stay, a court order that has the effect of permanently ending the prosecution.
County Court Judge Fiona Todd rejected the application for a stay on March 15, but her decision was last week overturned by the Court of Appeal, when Justices Stephen Kaye, Christopher Boyce and Phillip Priest found the Office of Public Prosecutions’ actions amounted to unjustifiable oppressive conduct and an abuse of process.
“We are driven to the conclusion that a further trial of the nine charges against the applicant would be so unfairly and unjustifiably oppressive as to constitute an abuse of the process,” the Court of Appeal judges found.
Porter originally went to trial on a total of 16 charges of sexual assault of a child under 16 and sexual penetration of a stepchild, allegedly between February 2019 and December 2021.
In the first trial, he was acquitted of five charges and prosecutors decided to discontinue another two counts.
On the remaining nine charges, juries in the second and third trials were unable to reach either unanimous or majority verdicts.
In the first trial, when the jury could not reach a verdict on nine charges, the prosecution and defence teams agreed it would be futile to provide the jury with a direction to try again.
In the second trial, a jury was empanelled but discharged the next day due to a prosecution error.
‘We are driven to the conclusion that a further trial of the nine charges against the applicant would be so unfairly and unjustifiably oppressive as to constitute an abuse of the process.’
Court of Appeal judges Stephen Kaye, Christopher Boyce and Phillip Priest
During the third trial, the jury reached an impasse in its deliberations and was directed to try again, but remained unable to reconcile its differences on any of the outstanding nine charges.
The Court of Appeal said the allegations against Porter were serious, but that over the course of three trials, the juries never found him guilty of a charge. They either found him not guilty or were unable to reach a verdict.
“It must be acknowledged that the charges each allege offending that is particularly serious,” the court found.
“The complainant was the stepchild of the applicant, and it is quite apparent, from [Porter’s] interview with police, that he was in a position of proximity and trust with her.
“The only verdicts which have been returned against the applicant were five verdicts (including one by direction) of not guilty, and the prosecution has also abandoned two of the other charges that it originally brought against him.”
The Court of Appeal also acknowledged prosecutions were stressful for both the complainant and the accused.
“The law properly recognises that trials of offences of the kind charged against the applicant involve particular strain and stress for complainants,” the judges said.
“But it must also be borne in mind that in each criminal trial, the accused person – who is presumed to be innocent unless and until proven guilty beyond reasonable doubt – is also subject to at least a commensurate degree of strain and anxiety.”
The stepdaughter gave evidence in the first trial but was spared doing so again in the retrials because a recording of her evidence was played.
The Office of Public Prosecutions declined to comment.
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