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Bowden (a pseudonym) v The Queen

Bowden (a pseudonym) v The Queen

Case [2017] VSCA 46 10 March 2017

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0055

TOBY BOWDEN (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	MAXWELL P, PRIEST JA and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2017
DATE OF JUDGMENT:	10 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 46
JUDGMENT APPEALED FROM:	DPP v Bowden (a pseudonym) [2016] VCC 297 (Unreported, County Court of Victoria, Judge Cotterell, 7 December 2015 (Conviction); 9 March 2016 (Sentence))

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CRIMINAL LAW – Application for leave to appeal – Conviction – Indecent act with a child under 16, sexual penetration of a child under 16 and incest – Fresh or new evidence – New evidence of telephone records, bank statement and pay slip – Evidence could have been adduced at trial – New evidence does not raise reasonable doubt of guilt – No substantial miscarriage of justice established – Leave to appeal refused.

CRIMINAL LAW – Application for leave to appeal – Sentence – Indecent act with a child under 16, sexual penetration of a child under 16 and incest – Applicant sentenced to a total effective sentence of 10 years and three months’ imprisonment with non-parole period eight years – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T R Marsh	Victoria Legal Aid
For the Crown	Ms F L Dalziel	Mr John Cain, Solicitor for Public Prosecutions

MAXWELL P

KIDD AJA:

We have had the advantage of reading in draft the reasons for judgment of Priest JA. For the reasons which his Honour gives, we too would refuse both applications for leave to appeal.

We wish to add only two matters. The first concerns the test to be applied by the appellate court when — as here — the ground of appeal relies on new evidence (as distinct from fresh evidence). As Priest JA notes, this Court in Rich v The Queen defined the test in these terms:

If admissible evidence persuades the court that there has been a miscarriage of justice because the appellant was innocent, or there is a reasonable doubt as to his or her guilt, it will quash the conviction and order entry of a verdict of acquittal or a new trial.[2]

[2](2014) 43 VR 558, 571 [50].

This passage identifies two alternative bases for upholding the ground. The first is where the new evidence persuades the Court of the appellant’s innocence. The second is where the Court is persuaded that ‘there is a reasonable doubt as to his or her guilt’.

It was common ground on the appeal that the second of these alternatives is made out only if the appellate court, having considered the evidence led at trial together with the new evidence, itself has a reasonable doubt about the appellant’s guilt. In the words of…

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 Bowden (a pseudonym) v The Queen

Details

AGLC: Toby Bowden (a pseudonym)[1] v The Queen [2017] VSCA 46
Case: [2017] VSCA 46
Decision Date: 10 March 2017

CaseChat Overview and Summary

In the case of Bowden v The Queen, the applicant sought leave to appeal against his conviction and sentence. Bowden was found guilty of indecent acts with a child under 16, sexual penetration of a child under 16 and incest. The applicant contested both the conviction and the sentence, arguing that the evidence was insufficient to establish guilt and that the sentence was excessive.

The court was required to decide whether the new evidence presented by the applicant could have reasonably been adduced at the trial and whether it raised a reasonable doubt of guilt. Additionally, the court had to determine if the sentence was manifestly excessive. The court considered the nature of the new evidence, including telephone records, bank statements, and a pay slip, and assessed whether these could have been presented at the original trial. The court concluded that the new evidence did not establish a reasonable doubt of guilt or a substantial miscarriage of justice.

The court found that the new evidence could have been adduced at the trial, and therefore, it did not meet the threshold for leave to appeal based on fresh or new evidence. The court also found that the sentence, while severe, was not manifestly excessive given the nature and seriousness of the crimes. Consequently, the application for leave to appeal was refused.

The court did not make any orders as the application for leave to appeal was dismissed. The conviction and sentence remained unchanged.

Orders