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Baker (a pseudonym) v The King

Baker (a pseudonym) v The King

Case [2025] VSCA 139 24 June 2025

Appeal

Conviction

Proof beyond reasonable doubt

Evidence of incriminating conduct

Jury Directions

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0222

PERRY BAKER (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	McLEISH, ORR and KIDD JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2025
DATE OF JUDGMENT:	24 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 139
JUDGMENT APPEALED FROM:	[2024] VCC 1720 (Judge Wilmoth)

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CRIMINAL LAW – Appeal – Conviction – Sexual offences against child under 16 – Victim applicant’s stepdaughter – Evidence of good character – Whether failure by defence counsel to adduce evidence of applicant’s lack of prior and subsequent sexual offending capable of explanation as rational forensic decision – Leave to appeal refused.

Evidence Act 2008, s 110.

Baker (a pseudonym) v The King [2024] VSCA 87; Parsons (a pseudonym) v The Queen [2016] VSCA 17; Schmidt v The King [2024] VSCA 256.

CRIMINAL LAW – Appeal – Conviction – Evidence of incriminating conduct – Whether prosecutor impermissibly relied on evidence of incriminating conduct – Leave to appeal granted – Appeal allowed.

Jury Directions Act 2015, ss 18, 19, 20, 21, 22.

Hussain v The King [2024] VSCA 288; Director of Public Prosecutions v Lynn [2024] VSCA 62; Pompei v The King [2023] VSCA 71.

CRIMINAL LAW – Appeal – Conviction – Proof beyond reasonable doubt – Direction that reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility – Whether direction inconsistent with Criminal Code (Cth) and Constitution – Farshchi v The King [2024] VSCA 235 applied – Leave to appeal refused.

Jury Directions Act 2015, s 64; Criminal Code (Cth), s 13.2; Constitution, s 80.

Farshchi v The King [2024] VSCA 235.

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Counsel
Applicant:		Mr DD Gurvich KC with Mr C Tom
Respondent:		Mr J Dickie
Solicitors
Applicant:	Stephen Peterson Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
ORR JA
KIDD JA:

In this application for leave to appeal against conviction,[1] the applicant contends that errors were made at his trial in the County Court by each of: his counsel; the prosecutor; and the trial judge, resulting in a substantial miscarriage of justice. He contends that his counsel erred by failing to adduce evidence of his good character and to request a direction from the trial judge in relation to his good character (proposed ground one). He contends that the prosecutor erred by relying on incriminating conduct reasoning in his closing address without filing a notice of intention to rely on evidence of incriminating conduct and without the jury receiving any direction about incriminating conduct reasoning (proposed ground two). And he contends that the trial judge erred by misdirecting the jury on the standard of proof (proposed ground three).[2]
[1]The application was filed out of time. An order granting the applicant an extension of time was made on 18 March 2025.
[2]We granted the applicant leave to amend his application for leave to appeal to add proposed ground three at the hearing. The respondent…

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 Baker (a pseudonym) v The King

Details

AGLC: Baker (a pseudonym) v The King [2025] VSCA 139
Case: [2025] VSCA 139
Decision Date: 24 June 2025

CaseChat Overview and Summary

The case before the court involved an appeal against a conviction for sexual offences against a child under the age of 16. The appellant, Baker, was found guilty of crimes committed against his stepdaughter. The appeal raised several issues concerning the conduct of the trial, including the defence counsel's decision not to present evidence of the appellant's good character and lack of prior and subsequent sexual offending. The court also considered whether the prosecutor had improperly relied on evidence of incriminating conduct and whether the jury direction on the standard of proof beyond reasonable doubt was consistent with the Criminal Code and the Constitution.

The court examined the decision of the defence counsel not to adduce evidence of the appellant's good character and lack of prior and subsequent sexual offending. The court concluded that this decision could be considered a rational forensic decision and did not warrant the granting of leave to appeal. The court also reviewed the prosecutor's reliance on evidence of incriminating conduct and found that it did not contravene the relevant statutory provisions. Consequently, leave to appeal was granted, and the appeal was allowed on this ground. Finally, the court assessed the jury direction on the standard of proof beyond reasonable doubt and held that it did not conflict with the Criminal Code or the Constitution, applying the decision in Farshchi v The King.

In summary, the court refused leave to appeal on the issue of the defence counsel's decision not to present evidence of good character, but granted leave to appeal on the issue of the prosecutor's reliance on evidence of incriminating conduct. The appeal was allowed on the latter ground. The court did not find any inconsistency with the jury direction on the standard of proof beyond reasonable doubt.

The final orders of the court were to allow the appeal in part, and to remit the matter to the trial court for further proceedings in light of the court's findings on the prosecutor's reliance on evidence of incriminating conduct. The appellant's conviction on the remaining counts was upheld.

Orders