SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0234
| ETHAN CANO (a pseudonym)[1] |
| v |
| THE QUEEN |
[1]Because this is an interlocutory appeal, a pseudonym has been used in place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.
---
| JUDGES: | NIALL, T FORREST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 November 2020 |
| DATE OF ORDERS: | 26 November 2020 |
| DATE OF REASONS: | 1 December 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 308 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1641 (Ruling No 1) [2020] VCC 1713 (Ruling No 2) (Judge Higham) |
---
CRIMINAL LAW – Interlocutory appeal – Evidentiary ruling – Pending trial of applicant for soliciting child pornography, procuring child outside of Australia to engage in sexual activity, using carriage service to groom person believed to be under 16, and transmitting indecent communications to person under 16 – First and second complainants in Canada – Third complainant undercover operative in Australia – Tendency notice seeking cross-admissibility filed by prosecution – Whether evidence regarding each complainant cross-admissible to support proof of applicant’s belief that complainants under 16 – Applicant sought severance on charges relating to undercover operative – Tendency evidence admissible – Severance application refused – Trial judge refused to certify as decision not attended by sufficient doubt to warrant certification – Trial judge’s refusal to certify and evidentiary ruling correct – Application to review refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Ms R Shann and Mr R de Vietri | Victoria Legal Aid |
| For the Respondent | Mr S Ginsbourg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
NIALL JA
T FORREST JA
WEINBERG JA:
Introduction
On 26 November 2020, this Court heard an application, pursuant to ss 295(2) and 296(1) of the Criminal Procedure Act 2009 (‘CPA’), to review a trial judge’s refusal to certify, and a consequential application for leave to appeal against an interlocutory decision by that judge. At the conclusion of oral submissions, the Court ordered that the application to review the judge’s refusal to certify should be dismissed. We said that we would publish our reasons in due course. These are those reasons.
Background facts
The applicant faces trial in the County Court on an indictment charging him with soliciting child pornography[2] (three charges — charges 2, 4, and 7); procuring a child to engage in sexual activity outside of Australia[3] (one charge — charge 3); using a carriage service to groom a person believed to be under 16[4] (one charge — charge 6); and using a carriage service to transmit indecent communications to a person under 16[5] (three charges — charges 1, 5, and 8).
[2]Criminal Code Act 1995 (Cth) sch 1 s 474.19(1).
[3]Ibid s 272.14(1).
[4]Ibid s 474.27(1).
[5]Ibid s 474.27A(1).
The charged offences are alleged to have been committed against three separate complainants. The first and second, ‘TC’ and ‘MT’, were young girls who lived in Canada at the time of the alleged offending. They were then aged 14…
Continue reading Cano (a pseudonym) v The Queen
Sign in free to access the full text
- AGLC
- Cano (a pseudonym) v The Queen [2020] VSCA 308
- Case
- [2020] VSCA 308
- Decision Date
CaseChat Overview and Summary
The court needed to determine if the evidence regarding the complainants could be cross-admitted, particularly in light of the applicant's argument that the evidence pertaining to the undercover operative should be severed from the other charges. The prosecution argued that the evidence from all complainants was relevant to show a pattern of behaviour and belief by Cano that the complainants were under 16. The court held that the evidence was indeed cross-admissible as it tended to show Cano’s belief about the age of the complainants, which was pertinent to the charges. The trial judge's decision to refuse severance and to rule the evidence admissible was deemed correct, as the decision was not attended by sufficient doubt to warrant certification.
The court dismissed the application to review the trial judge's decision, affirming that the trial judge's ruling on the admissibility of the evidence and the refusal to certify were both correct. The application was refused on the basis that the trial judge's decisions were sound, and there was no merit in the applicant's arguments for severance or certification.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.