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Baker (a Pseudonym) v The Queen

Baker (a Pseudonym) v The Queen

Case [2015] VSCA 323 2 December 2015

Conviction

Causation

Admissibility of Evidence

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0102

JAMES BAKER (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victims 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:	REDLICH and McLEISH JJA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 October 2015
DATE OF JUDGMENT:	2 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 323	1^st Revision 18 December 2015, [61]
JUDGMENT APPEALED FROM:	DPP v [Baker] (Unreported, County Court of Victoria, Judge Gamble, 4 March 2015)

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CRIMINAL LAW – Conviction – 13 charges of child sexual offences against multiple complainants – Inconsistencies in evidence between one complainant and other witnesses – Credibility of complainants – Whether convictions unsafe and unsatisfactory – Evidence of confidential communication – Whether admissible – Evidence (Miscellaneous Provisions) Act 1958 ss 32C and 32D – Whether indictment should have been severed – Evidence of one complainant not cross-admissible – Whether prejudicial effect and probative value appropriately balanced – Whether directions to jury sufficient to cure prejudice – R v TJB [1998] 4 VR 621; GBF v The Queen [2010] VSCA 135 – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G Traczyk	Turnbull Lawyers
For the Crown	Mr D A Trapnell QC with Ms S A Coombes	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA
McLEISH JA
BEALE AJA:

On 4 March 2015 the applicant, who is now aged 52, was convicted of 13 charges of sexual offences against three complainants following a 23-day trial in the County Court. He was sentenced to a total effective sentence of 11 years and three months’ imprisonment with a non-parole period of eight years and three months.

The offending was alleged to have occurred between January 1986 and March 1999. Each of the complainants was a child at the relevant time or times. Two charges were alleged in respect of the complainant SK, 10 charges in respect of the complainant FR and one charge concerning the complainant ES. FR and ES are half-sisters. The details of the offending that was alleged are set out below.

Charges 1–2: SK

The offending alleged in relation to SK was comprised of one incident said to have occurred in 1986 when she was aged about four. SK and her mother were boarders in the applicant’s home (which he shared with his partner at the time) in Portland. On one occasion, SK was left in the care of the applicant while her mother and the applicant’s then partner went out. SK was roused from her sleep by the applicant who took her into the bedroom he shared with his partner. There he instructed her to get on the bed and remove her pyjamas and underwear. The applicant moved down her body and began licking her vagina telling her that ‘most females should…

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 Queen

Details

AGLC: Baker (a Pseudonym) v The Queen [2015] VSCA 323
Case: [2015] VSCA 323
Decision Date: 2 December 2015

CaseChat Overview and Summary

Baker, a pseudonymous appellant, was convicted on 13 charges relating to child sexual offences against multiple complainants. He appealed against his convictions to the Court of Appeal, arguing that the convictions were unsafe and unsatisfactory due to inconsistencies in the evidence between one complainant and other witnesses, and questioning the credibility of the complainants. The court was also required to determine whether certain confidential communications were admissible under the Evidence (Miscellaneous Provisions) Act 1958 sections 32C and 32D, and whether the indictment should have been severed so that evidence from one complainant was not cross-admissible. The court further needed to assess whether the prejudicial effect of such evidence was appropriately balanced against its probative value, and whether the directions given to the jury were sufficient to mitigate any prejudice, considering the precedents set in R v TJB [1998] 4 VR 621 and GBF v The Queen [2010] VSCA 135.

In dismissing the appeal, the Court of Appeal found that the inconsistencies in evidence did not undermine the overall credibility of the complainants, and the appellant's convictions remained safe and satisfactory. The court ruled that the confidential communications were not admissible under the relevant sections of the Evidence (Miscellaneous Provisions) Act 1958, as they did not meet the criteria for exclusion. The court also concluded that the indictment did not need to be severed, as the prejudicial effect of the evidence was appropriately balanced against its probative value, and the jury directions were sufficient to mitigate any prejudice. The appeal court was satisfied that the trial judge had adequately managed the potential prejudice of the evidence, following the principles established in the cited precedents.

The Court of Appeal held that the evidence presented, despite some inconsistencies, sufficiently supported the appellant's convictions, and the trial judge's directions to the jury effectively addressed any prejudicial concerns. The court determined that the appellant's appeal did not demonstrate any errors of law or procedure that would warrant a new trial. Consequently, the appellant's convictions were upheld, and the application for leave to appeal was refused. The final orders affirmed the appellant's convictions on all 13 charges of child sexual offences.

Orders