Di Natale (a pseudonym) v The Queen - [2022] VSCA 99

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0006

DOMINIC DI NATALE (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim 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:	T FORREST, EMERTON and MACAULAY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 May 2022
DATE OF JUDGMENT:	26 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 99
JUDGMENT APPEALED FROM:	[2021] VCC 1812 (Judge D Sexton)

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CRIMINAL LAW – Appeal – Conviction – Indecent assault – Whether admission of evidence of tendency by accused to have sexual interest in complainant resulted in substantial miscarriage of justice – Whether evidence had significant probative value – Whether probative value substantially outweighed prejudicial effect – Tendency of evidence significantly probative to central issues in trial – Trial judge’s directions to jury limited risk of prejudice to acceptable degree – Hughes v The Queen (2017) 263 CLR 338 and R v Bauer (a pseudonym) (2018) 266 CLR 56 considered – Evidence Act 2008, ss 97(1) and 101(2) – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC with Mr J O’Connor and Ms J Ellis	Marco Man & Associates
For the Respondent	Ms J Warren	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA
EMERTON JA
MACAULAY JA:

On 25 June 2021 the applicant was found guilty by a jury of one charge of indecent assault[2] of his daughter, Angela.[3] The offence was said to have been committed between 1 January 1984 and 31 December 1985. The applicant was then aged 37 or 38 years and his daughter 11 or 12 years. The applicant was sentenced to two years and six months’ imprisonment.[4] The judge declared that one year and eight months of that sentence was suspended for two years.[5]
[2]Contrary to s 44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980.
[3]A pseudonym.
[4]DPP v Di Natale (a pseudonym) [2021] VCC 1812.
[5]By operation of s 27 of the Sentencing Act 1991, which is now repealed but continues to apply to sentencing in the County Court for offences committed before 1 September 2013: see s 149C(3).

In this application the applicant advances a single proposed ground of appeal, expressed as follows:

The admission of evidence as evidence of a tendency by the accused to have a sexual interest in the complainant resulted in a substantial miscarriage of justice.

Background

The proposed ground of appeal is quite narrow and a bare summary of the relevant evidence will suffice. The complainant stated that at a time when she was halfway through grade 5 and up until the end of grade 6, she would get into the applicant’s bed. She would lie on her side, as would the applicant. The applicant’s ‘front was to [her] back’.…

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.

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Details

Case: [2022] VSCA 99
Decision Date: 26 May 2022

CaseChat Overview and Summary

In the case of Di Natale (a pseudonym) v The Queen, the appellant, who was convicted of indecent assault, appealed against his conviction on the grounds that the trial judge admitted evidence of a tendency by the appellant to have a sexual interest in the complainant, which resulted in a substantial miscarriage of justice. The court was required to determine whether the evidence had significant probative value and whether its probative value substantially outweighed its prejudicial effect. The central issue was whether the tendency evidence was significantly probative of the central issues in the trial and whether the trial judge's directions to the jury limited the risk of prejudice to an acceptable degree. The court considered the decisions in Hughes v The Queen and R v Bauer, as well as the relevant provisions of the Evidence Act 2008.

The court found that the tendency evidence was significantly probative of the central issues in the trial, including the appellant's state of mind and his likelihood of having committed the offence. The court held that the probative value of the evidence substantially outweighed its prejudicial effect, as the trial judge had given appropriate directions to the jury to limit the risk of prejudice. The court also found that the evidence was relevant to the issues in the trial and was necessary to establish the appellant's guilt. The court held that the trial judge had properly exercised his discretion in admitting the evidence under s 97(1) and 101(2) of the Evidence Act 2008.

The appeal was dismissed, and the application for leave to appeal was refused. The court held that there was no substantial miscarriage of justice in the trial, and the appellant's conviction was safe and sound. The court noted that the appellant's conviction was based on overwhelming evidence, and the tendency evidence was only one part of the prosecution's case. The court held that the appellant's conviction was not affected by the admission of the tendency evidence and that the trial judge had properly exercised his discretion in admitting it. The court held that the appeal was without merit and that the conviction should be upheld.

Orders