Andrew Kovachev (a pseudonym) v The King

Case [2024] VSCA 325
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2023 0154
ANDREW KOVACHEV (a pseudonym)[1] Applicant
v
THE KING Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES: PRIEST, NIALL and TAYLOR JJA
WHERE HELD: Melbourne
DATE OF HEARING: 14 October 2024
DATE OF JUDGMENT: 19 December 2024
MEDIUM NEUTRAL CITATION: [2024] VSCA 325
JUDGMENT APPEALED FROM: DPP v Kovachev (a pseudonym) [2023] VCC 689 (Judge Chettle)

---

CRIMINAL LAW – Appeal – Conviction – Sexual penetration of a child under 12 and associated offences – Hearsay – Evidence of penetration was previous representation of child complainant – Whether unreliable evidence warning required – Whether verdict unsafe and unsatisfactory – Extension of time granted – Appeal allowed – Verdict of guilty of sexual assault of child under 16 substituted.

---

Counsel
Applicant: Mr D Dann KC
Respondent: Ms S Clancy

Solicitors
Applicant: Seda Kilic & Associates
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA:

Introduction

  1. An indictment filed in the County Court charged the applicant with a number of sexual offences (‘the trial indictment’).

  2. Charge 1 on the trial indictment, upon which (among others) the jury found the applicant guilty on 3 March 2023, was a charge of sexual penetration of ‘Evelina Groves’,[2] a child under 12.[3]  A charge of sexual assault of a child under 16,[4] charge 2, was laid in the alternative.

    [2]This was a pseudonym assigned by the County Court.

    [3]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 49A(1). The maximum penalty is 25 years’ imprisonment, and the standard sentence is 10 years’ imprisonment.

    [4]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 49D(1). The maximum penalty is 10 years’ imprisonment, and the standard sentence is 4 years’ imprisonment.

  3. Immediately following the delivery of the jury’s verdicts, the applicant pleaded guilty to charges on a second indictment (‘the plea indictment’) of accessing (charge 1), and possessing (charge 2), child abuse material.  Subsequently, on 27 April 2023, the trial judge sentenced the applicant on the charges in the trial and plea indictments to a total effective sentence of 13 years and six months’ imprisonment, with a non-parole period of nine years and six months.[5]

    [5]The individual sentences and the orders for cumulation are conveniently set out in a table in the reasons of Taylor JA at [38] below.

  4. The applicant has sought an extension of time within which to seek leave to appeal against both conviction and sentence.

  5. As we will explain, we are of the view that an extension of time within which to seek leave to appeal against conviction should be granted, as should leave to appeal.  We would allow the appeal — limited to the conviction on charge 1 on the trial indictment — and substitute a verdict…

Continue reading Andrew Kovachev (a pseudonym) v The King

Sign in free to access the full text

Details
AGLC
Andrew Kovachev (a pseudonym) v The King [2024] VSCA 325
Case
[2024] VSCA 325
Decision Date

CaseChat Overview and Summary

In the case of Andrew Kovachev (a pseudonym) v The King, the applicant appealed against his conviction for sexual penetration of a child under 12 years of age and associated offences. The court was tasked with determining whether the trial judge erred in not providing an unreliable evidence warning regarding a previous representation made by the child complainant, Evelina, to her mother. Additionally, the court had to consider whether the verdict was unsafe and unsatisfactory, and whether the verdict of guilty of sexual assault of a child under 16 should be substituted.

The court examined whether the trial judge should have issued an unreliable evidence warning under ss 31 and 32 of the Justices Act 1986 (Vic) concerning the hearsay evidence of Evelina's representation to her mother. The applicant's counsel had requested such a warning, but the trial judge declined, mistakenly believing that Evelina's evidence did not fit into the categories of unreliable evidence and that the applicant had to demonstrate a good reason for the warning. The court found that the judge's decision was incorrect and that the warning should have been given as the evidence of the child's representation to her mother was indeed unreliable.

The court held that the verdict was unsafe and unsatisfactory because the trial judge's failure to provide the unreliable evidence warning was a significant error. The court concluded that the verdict of guilty of sexual assault of a child under 16 should be substituted for the original conviction.

The court granted an extension of time for the applicant to apply for leave against both conviction and sentence. The final orders of the court were that the appeal against conviction was allowed, the verdict of guilty of sexual assault of a child under 16 was substituted for the original conviction, and the applicant was granted an extension of time to apply for leave.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 10 April 2019 the applicant invited Clarissa and her brother to his house to see his new chickens. They stayed for a while, watching movies and playing with toys. The applicant later told Clarissa’s mother that Clarissa had complained of a sore wrist, ankle and ‘giney’ (meaning vagina) so he had applied Band-Aids to her wrist and foot and wiped her vagina with a tissue. The prosecution alleged that the wiping of the vagina was driven by the applicant’s sexual interest in Clarissa rather than medical purposes (charge 6).Factual background — plea indictment The two charges with respect to child abuse material arose following the execution of a search warrant at the applicant’s home on 12 April 2009, in which a large number of electronic devices were seized. Such material was located on a mobile phone, three of four laptops and three of 12 hard drives (charge 2). Specifically, this material was:(a)166 images on the mobile phone, of which 3 were of LW and 161 of Evelina. Some of these images depicted each girl naked and in a bath. Some depicted Evelina partially naked, in swimwear or clothed and focused on her genital region. The remaining image was a discretely captured image of a young unidentified female on public transport.(b)A total of 4203 images on the laptops including two images of Evelina. In general the images depicted children from newborns to teenagers posing naked and/or suggestively, or engaged in graphic sexual acts.(c)A total of 8,286 images on the hard drives. The internet search history was analysed and indicated that the laptops and hard drives were used to download child abuse material (charge 1).ConvictionEvidence — charge 1 Evelina participated in two visual and audio recorded evidence (‘VARE’) interviews on 18 April 2019 and 30 October 2021. At the time of those interviews she was aged six years and eight years respectively. In the 2019 VARE Evelina gave no evidence relevant to charge 1 (but did describe the events relevant to charge 4). In the 2021 VARE Evelina described an occasion relevant to charge 1 but gave no evidence of penetration. She said that after waking and feeling frightened, she went first to her brother’s room, but her brother was asleep, so she then went to her mother’s bedroom where the applicant was. Evelina described the touching of her vagina under her clothes in the following terms:… I could feel him putting his hand down my pants and that.And he kind of hurt me while doing that ‘cause, like, my bone was pushed in and that, and it was really hurting. Evelina described that she was on her side facing away from the applicant and he ‘went from the back of the pants first’ before moving his hand to the front. She said that neither she nor the applicant spoke. Evelina said that after the applicant had first touched her she got up and went to her brother’s room. The applicant then grabbed her and carried her back and the touching resumed. She said that the touching was similar on both occasions.

Evidence

Evidence Before The Court

The content of the particular direction that must be given by the judge is set out in s 32(3):32 Direction on unreliable evidence…(3)In giving a direction referred to in subsection (1), the trial judge must—(a) warn the jury that the evidence may be unreliable; and(b) inform the jury of—(i)the significant matters that the trial judge considers may cause the evidence to be unreliable; or(ii)if the direction concerns evidence given by a child, the significant matters (other than solely the age of the child) that the trial judge considers may make the evidence of the child unreliable; and(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. In the discussion contemplated by s 12 of the JDA, the applicant’s trial counsel asked for an ‘unreliable witness warning’ with respect to Evelina (and her cousin ‘Willow Tanner’).[13] Although counsel’s submissions lacked precision, in circumstances where he specifically drew the trial judge’s attention to s 31 of the JDA — in which various categories of ‘evidence of a kind that may be unreliable’ are set out — it is clear that counsel effectively acknowledged that the warning that he sought was governed by the provisions of ss 31 and 32 of the JDA. Furthermore, albeit that his submissions on the topic were not expressed with the clarity that would have been desirable, it is also plain that counsel’s submissions were in part directed to the evidence of Evelina’s ‘complaint’ to her mother. [13]This was a pseudonym assigned by the County Court. As we have said, notwithstanding his reference to s 31 of the JDA, counsel described the direction he asked for as an ‘unreliable witness warning’. Unlike the position at common law, however, in which certain categories of witnesses (including accomplices, sexual assault complainants, child witnesses and prison informants) were regarded as unreliable — requiring the trial judge to warn the jury about the dangers of relying on such evidence unless it was corroborated[14] — ss 31 and 32 of the JDA are not specifically concerned with witnesses of a kind who traditionally have been regarded as unreliable, but with evidence of a kind that may be unreliable (albeit that the definition of ‘evidence of a kind that may be unreliable’ in s 31 covers much of the same field as the common law). The discussion between counsel and the trial judge makes it clear, however, that the judge was fully aware that the warning being sought was governed by ss 31 and 32 of the JDA.[14]See, e.g., Bromley v The Queen (1986) 161 CLR 315, 324; Pollitt v The Queen (1992) 174 CLR 558. Mistakenly — given that Evelina’s hearsay representation to her mother was caught by the definition of ‘evidence of a kind that may be unreliable’ in s 31 — the judge observed that Evelina’s evidence ‘doesn’t fit into any of the usual categories of unreliable evidence’. Moreover, the judge also mistakenly observed — given the terms of s 14(1) of the JDA — that the applicant has ‘got to demonstrate to me there’s good reason to get it’.[15] Ultimately, the judge said, ‘I don’t see any basis for an unreliable witness warning’, and told defence counsel, ‘you haven’t got any grounds for an unreliable witness warning’.[15]See Wade (a pseudonym) v The Queen [2019] VSCA 168, [28], [35] and [39] (Priest, T Forrest and Weinberg JJA). See also Danny (a pseudonym) v The Queen [2020] VSCA 8; Movel (a pseudonym) v The Queen [2024] VSCA 183.

Decision

Reasons for decision

Ground 3 must fail.Conclusion The application for an extension of time in which to apply for leave against both conviction and sentence must be refused.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.