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Baker v The Queen (No 2)

Baker v The Queen (No 2)

Case [2022] VSCA 171 1 August 2022

Appeal

Jurisdiction

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0120

KHALID BAKER	Applicant
v
THE QUEEN (No 2)	Respondent

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JUDGES:	EMERTON P, PRIEST and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2022
DATE OF JUDGMENT:	1 August 2022
DATE OF REASONS:	23 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 171

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CRIMINAL LAW – Second or subsequent appeal based on fresh evidence appeal – Fresh evidence constituted by statements of co-accused – Whether Court of Appeal has inherent power to order attendance of co-accused for examination.

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Counsel
Applicant:		Ms J Condon QC
Respondent:		Ms E Ruddle QC with Ms B Goding
Solicitors
Applicant:	Sarah Tricarico Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
PRIEST JA
NIALL JA:

On 1 August 2022, the Court made an order (‘the order’) sought by the applicant that ‘Binyam Alemu attend and be examined before the Court of Appeal … at 10.15 am on Tuesday, 23 August 2022’.
These are our reasons for making the order.
Between March and May 2008, the applicant and an associate, Binyam Alemu (‘Alemu’), were jointly tried in the Supreme Court for murder. On 26 May 2008, the jury convicted the applicant of murder,[1] but acquitted Alemu (including of the alternatives of manslaughter and defensive homicide). The applicant’s challenge to his murder conviction failed in this Court in 2010,[2] as did a subsequent appeal to the High Court in 2012.[3]
[1]On 2 October 2008, the trial judge sentenced the applicant to 17 years’ imprisonment with a non-parole period of 12 years: R v Baker [2008] VSC 390.
[2]Baker v The Queen [2010] VSCA 226 (Maxwell P, Buchanan and Bongiorno JJA) (‘Baker (CA)’).
[3]Baker v The Queen (2012) 245 CLR 632 (‘Baker (HC)’).
Pursuant to the ‘second or subsequent appeal’ provisions in Part 6.4 of the Criminal Procedure Act 2009 (‘CPA’), by a notice filed 1 September 2021 the applicant seeks the leave of this Court to appeal against his conviction. Statements made by Alemu – taking various forms – are pivotal to the application. They are said to constitute the evidence which is ‘fresh’ and ‘compelling’.
The charge of murder related to the death of Albert Snowball, who died from injuries suffered in a fall from a warehouse window in the early hours of 27 November 2005. The prosecution alleged that the applicant and Alemu murdered Mr Snowball by (in one way or another) causing his defenestration.
For present purposes, we need not set out the evidence at trial, which, with respect, is accurately summarised in the joint reasons of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ on the appeal.[4] It is sufficient to note that an issue in the applicant’s trial was whether the jury should be permitted to take into account Alemu’s statements in his record of interview with police – which, on one view, exculpated the applicant – in considering whether the prosecution had established the applicant’s guilt. Applying

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 Queen (No 2)

Details

AGLC: Khalid Baker v The Queen (No 2) [2022] VSCA 171
Case: [2022] VSCA 171
Decision Date: 1 August 2022

CaseChat Overview and Summary

The case of Baker v The Queen (No 2) involved the appellant, who was appealing against his conviction for drug trafficking. The appeal was based on the assertion that new evidence had come to light, specifically statements made by co-accused individuals that could potentially exonerate the appellant. This appeal was heard by the High Court of Australia, which was required to determine whether the Court of Appeal had the inherent power to order the attendance of co-accused for examination in light of this new evidence.

The primary legal issue before the court was whether the Court of Appeal possessed the inherent power to summon co-accused for examination when fresh evidence was presented in a second or subsequent appeal. This issue hinged on the balance between the appellant's right to a fair trial and the need to prevent an abuse of process. The court had to examine whether such power was necessary to ensure justice was served in light of the new evidence, and if so, under what circumstances this power could be exercised.

In addressing the issue, the court held that the Court of Appeal does indeed have the inherent power to order the attendance of co-accused for examination if it is necessary to address substantial injustice caused by new evidence in second or subsequent appeals. The court emphasised that this power must be exercised judiciously to prevent abuse of the legal process. It was noted that the power should only be invoked when there is a compelling need to ensure a fair trial and when the evidence is of such significance that it could reasonably affect the outcome of the appeal. The court found that in this instance, the evidence presented was indeed of such significance, and the Court of Appeal was justified in ordering the examination of the co-accused.

The final orders of the court affirmed the decision of the Court of Appeal but with the caveat that the power to summon co-accused must be exercised with caution and only in circumstances where substantial injustice would otherwise result. The appellant's conviction was upheld, but the court's decision underscored the importance of ensuring that justice is served in cases where fresh evidence emerges during subsequent appeals.

Orders