SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0255
| NESIM BADEM (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | WARREN CJ, WEINBERG and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 July 2016 |
| DATE OF JUDGMENT: | 17 August 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 200 |
| JUDGMENT APPEALED FROM: | DPP v Badem (A Pseudonym) (Unreported, County Court of Victoria, Judge Carmody, 9 November 2015) |
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CRIMINAL LAW – Conviction – Application for leave to appeal – Applicant convicted of one charge of persistent sexual abuse of a child under the age of 16 – Whether verdict unreasonable or could not be supported having regard to the evidence – Whether verdict unsafe or unsatisfactory – Reasonably open to jury to have been satisfied beyond reasonable doubt of applicant’s guilt – Application for leave to appeal against conviction refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Doogue O’Brien George |
| For the Crown | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions. |
WARREN CJ
WEINBERG JA
PRIEST JA:
On 15 October 2015 the applicant, now aged 67, was found guilty of one charge of persistent sexual abuse of a child under the age of 16, an offence contrary to s 47A of the Crimes Act 1958. The victim of the offending was the applicant’s daughter.
Section 47A relevantly provides as follows:
(1)A person who persistently sexually abuses a child under the age of 16 is guilty of an indictable offence.
(2) To prove an offence under subsection (1) it is necessary to prove—
(a)that the accused during a particular period (while the child was under the age of 16) did an act in relation to the child which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B); and
(b)that an act which would constitute an offence under a provision of this Subdivision or Subdivision (8A) or (8B) took place between the accused and the child on at least two other occasions during that period.
(2A)It is not necessary that the alleged acts be of a similar nature or constitute an offence under the same provision.
(3)It is not necessary to prove an act referred to in subsection (2)(a) or (b) with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against subsection (1).
(4)A person who is guilty of an offence under subsection (1) is liable to level 2 imprisonment (25 years maximum).
The applicant was sentenced to seven years and six months’ imprisonment. A non-parole period of five years was fixed.
The applicant now seeks leave to appeal against conviction. He relies upon a single ground, namely that the verdict is unreasonable or cannot be…
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- AGLC
- Badem v The Queen [2016] VSCA 200
- Case
- [2016] VSCA 200
- Decision Date
CaseChat Overview and Summary
The central legal issues were whether the verdict was unreasonable or unsupported by the evidence, and whether the verdict was unsafe or unsatisfactory. The court had to assess the sufficiency and reliability of the evidence, as well as the credibility of the witnesses. The applicant argued that the evidence was insufficient to support the verdict, and that the jury should not have been satisfied beyond reasonable doubt of the applicant’s guilt. However, the court had to consider whether the evidence was sufficient to allow a reasonable jury to be satisfied beyond reasonable doubt of the applicant’s guilt.
The court found that the verdict was reasonably open to the jury based on the evidence. The court held that the jury was entitled to accept the evidence of the complainant and the other witnesses, and to reject the applicant’s evidence. The court found that the evidence was sufficient to support the verdict, and that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. The court held that the verdict was not unreasonable or unsupported by the evidence, and that it was not unsafe or unsatisfactory. The court therefore refused the application for leave to appeal against the conviction.
The final orders of the court were that the application for leave to appeal against the conviction was refused. The applicant was not granted leave to appeal, and the conviction stood. The court held that the evidence was sufficient to support the verdict, and that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. The court found that the verdict was reasonably open to the jury, and that it was not unreasonable or unsupported by the evidence.
Orders
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Background
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Evidence
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Decision
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