Baker v The King - [2022] VSCA 196

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0120

KHALID BAKER	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON ACJ, PRIEST and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2022, 13 May 2022, 29 July 2022, 1 August 2022, 10 August 2022 and 23 August 2022
DATE OF JUDGMENT:	14 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 196
JUDGMENT APPEALED FROM:	R v Baker (Unreported, 26 May 2008, Supreme Court of Victoria, Whelan J) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Second or subsequent appeal – Murder – Deceased forced out a window during fight – Fall from height caused fatal injuries – Joint trial – Co-accused acquitted by jury – Admissions in co-accused’s record of interview that he had last physical contact with deceased – Co-accused’s record of interview not admissible at time of trial conducted – Record of interview now admissible – Subsequent admissions by co-accused in media interviews and other sources that he had last physical contact with deceased – Whether fresh evidence – Whether compelling evidence – Whether reliable evidence – Whether substantial evidence – Evidence not compelling – Evidence not reliable, substantial or highly probative of the principal disputed issue at trial – Leave to appeal refused – Criminal Procedure Act 2009, ss 326A, 326C – Evidence Act 2008, s 83(2) – Roberts v The Queen (2020) 60 VR 431; Van Beelen v The Queen (2017) 262 CLR 565.

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Counsel
Applicant:		Ms R Shann KC with Ms B Kelly (to 13 May 2022 ) Ms J Condon KC (from 29 July 2022)
Respondent:		Ms E Ruddle KC with Ms B Goding
Solicitors
Applicant:	Doogue + George Defence Lawyers (13 May 2022 ) Sarah Tricarico Lawyers (from 29 July 2022)
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON ACJ
PRIEST JA
NIALL JA:

Introduction

At about 3.00 am on 27 November 2005, Albert Snowball, aged 22 years, was at a party in a converted warehouse in Brunswick (‘the warehouse party’) when he went through a glass window and fell 5.4 metres to the ground, causing him catastrophic injuries. He was pronounced dead two days later, at 11.00 am on 29 November 2005. The next day, 30 November 2005, Dr Malcolm Dodd, forensic pathologist, performed a post-mortem examination of Mr Snowball’s body. Dr Dodd subsequently gave evidence that the cause of Mr Snowball’s death was ‘one of multiple injuries … secondary to fall from a height’.
Then aged 18 years,[1] the applicant was at the same party as Mr Snowball. He attended with four associates, including Binyam Alemu (for convenience, ‘Alemu’) – then a minor[2] – Lado Morgan (‘Morgan’) and Ali Faulkner (‘Faulkner’). Following a police investigation, both the applicant and Alemu were charged with Mr Snowball’s murder. Throughout March, April and May 2008 they were tried in the Supreme Court.
[1]The applicant’s date of birth is 10 July 1987.
[2]Alemu’s date of birth is 5 March 1988.
As we will later explain in…

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 v The King

Details

AGLC: Baker v The King [2022] VSCA 196
Case: [2022] VSCA 196
Decision Date: 14 September 2022

CaseChat Overview and Summary

The appellant, Baker, sought leave to appeal against his conviction for the murder of a deceased who was forced out of a window during a fight, resulting in fatal injuries. The case was heard by the High Court of Australia. The primary issue before the court was whether the fresh evidence, which included admissions by the co-accused that he had the last physical contact with the deceased, was compelling, reliable, substantial or highly probative of the principal disputed issue at trial. The appellant argued that the evidence should have been admitted at the original trial and would have likely led to an acquittal.

The court examined the nature of the fresh evidence and its potential impact on the original trial's outcome. It considered the co-accused's admissions in media interviews and other sources, which were not available at the time of the original trial. The court held that the evidence was not compelling, reliable, substantial, or highly probative of the principal disputed issue at trial. Furthermore, the court found that the evidence did not meet the criteria set out in Roberts v The Queen and Van Beelen v The Queen for admitting fresh evidence in subsequent appeals.

Consequently, the court refused the appellant leave to appeal. The court found that the fresh evidence did not meet the stringent requirements for admission in subsequent appeals under the Criminal Procedure Act 2009 and the Evidence Act 2008. The appellant's conviction for murder was therefore upheld.

Orders