Ashby (a pseudonym) v The Queen - [2021] VSCA 209

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0168
S EAPCR 2020 0236

DANIEL ASHBY (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, BEACH and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 July 2021
DATE OF JUDGMENT:	30 July 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 209
JUDGMENT APPEALED FROM:	[2020] VCC 622 (Judge M P Bourke)

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CRIMINAL LAW – Conviction – Application for extension of time within which to seek leave to appeal against conviction – Whether trial miscarried by reason of admission of irrelevant and unfairly prejudicial evidence – Whether trial miscarried by reason of incompetence of applicant’s trial counsel – Hectoring, inept and clumsy cross-examination of the complainant – No miscarriage of justice – Applicant’s proposed grounds of appeal not reasonably arguable – Futile to grant extension of time – Application for extension of time refused.

CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Application to set aside judge’s order that applicant’s reporting period under Sex Offenders Registration Act 2004 was 15 years – Judge misled by prosecutor into making order – Crown concession that no basis for order made – Order set aside – Sex Offenders Registration Act 2009, ss 11 and 34.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr M Fitzgerald	Doogue + George
For the Respondent	Mr J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
EMERTON JA:

On 13 February 2020, following a trial in the County Court, the applicant was found guilty of one charge of sexual assault[2] (charge 1) and one charge of rape[3] (charge 2). On 15 May 2020, the applicant was sentenced to a total effective sentence of 5 years and 6 months, with a non-parole period of 3 years.[4] Pursuant to s 34 of the Sex Offenders Registration Act 2004 (‘the SOR Act’), the judge ordered that the length of the applicant’s reporting period under that Act was 15 years.
[2]Contrary to s 40 of the Crimes Act 1958.
[3]Contrary to s 38 of the Crimes Act 1958.
[4]DPP v Ashby (a pseudonym) [2020] VCC 622 (‘Sentencing Reasons’).

The applicant now seeks an extension of time within which to seek leave to appeal against his convictions and, if the extension of time is granted, leave to appeal against those convictions. The applicant’s proposed grounds of appeal are as follows:

1.The applicant’s trial miscarried as a result of the admission of irrelevant and unfairly prejudicial evidence of an admission by him that ‘I keep doing this shit.’
2.The applicant’s trial miscarried as a result of the incompetence of his trial counsel.

Particulars
(a)the applicant’s trial counsel failed to object to irrelevant and unfairly prejudicial evidence;
(b)the applicant’s trial counsel prejudiced his defence, by engaging in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ashby (a pseudonym) v The Queen

Details

AGLC: Ashby (a pseudonym) v The Queen [2021] VSCA 209
Case: [2021] VSCA 209
Decision Date: 30 July 2021

CaseChat Overview and Summary

The case of Ashby v The Queen involved an application by the defendant, using a pseudonym, for an extension of time to seek leave to appeal against his conviction and sentence. The application was heard by a single judge of the Court of Appeal. The central issues were whether the trial had miscarried due to the admission of prejudicial evidence and the alleged incompetence of the defendant's trial counsel, and whether the defendant's proposed grounds of appeal were reasonably arguable.

The court examined the trial records and found that the evidence in question, although it might have been prejudicial, did not result in a miscarriage of justice. The court also scrutinised the conduct of the defendant's trial counsel and concluded that the cross-examination of the complainant, while not exemplary, did not amount to incompetence. The proposed grounds of appeal, concerning the admissibility of certain evidence and the conduct of the trial, were deemed not reasonably arguable. The judge determined that granting an extension of time would be futile.

The court refused the application for an extension of time, finding it unnecessary and unjustifiable. In relation to the sentence, the court considered the defendant's application to set aside the judge's order regarding the reporting period under the Sex Offenders Registration Act 2004. The court accepted that the trial judge had been misled by the prosecutor, and the Crown conceded that there was no basis for the order. Consequently, the court set aside the order, substituting a reporting period under the Sex Offenders Registration Act 2009.

The final orders of the court were the refusal of the application for an extension of time and the setting aside of the order concerning the reporting period under the Sex Offenders Registration Act 2004.

Orders