Baker (a pseudonym) v The King

Case [2024] VSCA 87

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2023 0086
JASON BAKER (A PSEUDONYM)[1] Applicant
v
THE KING Respondent

[1]To avoid the possibility of identifying the alleged victims of sexual offences, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and the complainants.

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JUDGES: McLEISH, NIALL and KAYE JJA
WHERE HELD: Melbourne
DATE OF HEARING: 30 April 2024
DATE OF JUDGMENT: 7 May 2024
MEDIUM NEUTRAL CITATION: [2024] VSCA 87
JUDGMENT APPEALED FROM: [2022] VCC 2225 (Judge Mullaly)

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CRIMINAL LAW – Appeal against conviction – Eight charges of sexual offending against child – Failure of defence counsel to call good character evidence – Whether rational forensic explanation for failure – Whether substantial miscarriage of justice – Appeal allowed – Retrial ordered.

Criminal Procedure Act 2009, s 276; Evidence Act 2008, ss 110, 112 referred to.


Bishop v The Queen (2013) 39 VR 642; DPP v Newman (a pseudonym) (2015) 45 VR 302; Saw Wah v The Queen (2014) 45 VR 440; TKWJ v The Queen (2002) 212 CLR 124, applied.

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Counsel
Applicant: Mr DA Dann KC
Respondent: Mr JCJ McWilliams

Solicitors
Applicant: Emma Turnbull Lawyers
Respondent: A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
NIALL JA
KAYE JA:

  1. Following a trial in the County Court, the applicant was convicted of eight charges of sexual offending against his biological daughter, comprising one charge of indecent act with a child aged under 16 years (charge 1), one charge of sexual activity in the presence of a child under the age of 16 years (charge 2), one charge of incest (charge 3), one charge of sexual assault of a child under the age of 16 years (charge 4), three charges of sexual assault of a child aged 16 or 17 years under his care, supervision or authority (charges 5, 6 and 7), and one charge of sexual penetration of a child or lineal descendant (charge 8). Following a plea on his behalf, the applicant, on 7 December 2022, was sentenced to a total effective sentence of 13 years and 9 months’ imprisonment, with a non-parole period of 9 years and 3 months.

  2. The applicant seeks leave to appeal against conviction on one ground, namely:

    A substantial miscarriage of justice has occurred in circumstances where:

    (a)good character evidence was elicited from a Prosecution witness;

    (b)good character evidence was not called as part of the Defence case;

    (c)a direction as to the use of good character evidence was not requested; and

    (d)a direction as to the use of good character evidence was not given to the jury.

  3. The notice of application for leave to appeal against sentence was filed on 17 May 2023. Accordingly, the applicant also makes application, under s 313 of the Criminal Procedure Act 2009, for an extension of time within which to file the notice of application for leave to appeal.

Background

  1. The applicant was born in October 1970. At…

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Baker (a pseudonym) v The King [2024] VSCA 87
Case
[2024] VSCA 87
Decision Date

CaseChat Overview and Summary

The appeal in Baker v The King involved an appellant who was convicted on eight charges of sexual offending against a child. The appellant's counsel did not call any evidence of his good character. The appellant sought to appeal on the grounds of a substantial miscarriage of justice, arguing that the failure to call evidence of good character was not rationally explained. The Court of Appeal considered whether the failure to call evidence of good character constituted a substantial miscarriage of justice.

The central legal issue was whether the appellant's failure to call evidence of good character was rationally explained and, if not, whether this constituted a substantial miscarriage of justice warranting a retrial. The appellant argued that the failure to call evidence of good character was not rationally explained and that this constituted a substantial miscarriage of justice. The respondent contended that the failure to call such evidence was rationally explained because the appellant did not wish to call evidence of good character.

The Court of Appeal held that the failure to call evidence of good character was not rationally explained, as the appellant had not indicated any reason why he did not wish to call such evidence. The Court found that the absence of evidence of good character was a significant disadvantage to the appellant's defence, particularly in a case involving oath against oath. The Court concluded that the failure to call evidence of good character constituted a substantial miscarriage of justice and allowed the appeal, ordering a retrial.

The Court ordered a retrial of the appellant on the eight charges of sexual offending against a child.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 110 of the Evidence Act provides for the adducing of evidence of good character of an accused person as follows:Evidence about character of an accused(1)The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by an accused to prove (directly or by implication) that the accused is, either generally or in a particular respect, a person of good character.(2)If evidence adduced to prove (directly or by implication) that an accused is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the accused is not generally a person of good character.(3) If evidence adduced to prove (directly or by implication) that an accused is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the accused is not a person of good character in that respect. Section 112 provides that an accused must not be cross-examined about matters arising from evidence of character unless the court gives leave to the prosecutor to do so. As a result of s 110(1), it is open to an accused person to adduce evidence of both general good character, and also evidence that the accused was, in a particular respect, a person of good character. In a case in which an accused person adduces character evidence, ordinarily, that evidence has a dual role, bearing both on the improbability of the guilt of the accused on the offences charged, and also on the credibility of an account, given by the accused, as to his or her innocence of the offences charged.[9][9]TKWJ v The Queen (2002) 212 CLR 124, 135 [35] (Gaudron J); [2002] HCA 46 (‘TKWJ’); Bishop v The Queen (2013) 39 VR 642, 651 [36] (Priest JA); [2013] VSCA 273 (‘Bishop’); Saw Wah (2014) 45 VR 440, 449 [48]–[50] (Weinberg JA). In Saw Wah, Weinberg JA explained the probative value of character evidence in the following terms:It should be said that the importance of evidence of good character is sometimes underrated. In a case such as the present, involving oath against oath, such evidence can be of particular significance. Not only does the jury learn that the accused has no prior convictions, but they are also told that this evidence bears directly upon the likelihood that he committed the offences charged. Moreover, they are also told that the accused’s previous good character is relevant to his credibility. It is obviously a significant disadvantage to the defence if, for whatever reason, the evidence of good character is not led, and the directions to which the accused is entitled are not given.[10][10]Ibid 448 [41]. As the decision of this Court in Director of Public Prosecutions v Newman (a pseudonym)[11] makes clear, in the present case, the mere fact that the applicant had previously been charged with sexual offending against his sister, without more, was not admissible against the applicant as evidence of bad character.[11](2015) 45 VR 302 (Priest and Beach JJA); [2015] VSCA 25 (‘Newman’).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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