Badem v The Queen - [2016] VSCA 200

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…

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 Badem v The Queen

Details

AGLC: Badem v The Queen [2016] VSCA 200
Case: [2016] VSCA 200
Decision Date: 17 August 2016

CaseChat Overview and Summary

The case of Badem v The Queen involved the applicant who was convicted of persistent sexual abuse of a child under the age of 16. The applicant sought leave to appeal against the conviction, arguing that the verdict was unreasonable or could not be supported considering the evidence, and that it was unsafe or unsatisfactory. The court was required to determine whether the verdict was reasonably open to the jury based on the evidence presented, and whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt.

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