Didulica v The King - [2023] VSCA 292

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0124

MARIO DIDULICA	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR AND OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2023
DATE OF JUDGMENT:	30 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 292
JUDGMENT APPEALED FROM:	DPP v Didulica [2023] VCC 982 (Judge Gaynor)

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CRIMINAL LAW – Appeal – Conviction – Indecent act with, and sexual penetration of, a child under 16 – Extradition – Whether applicant tried in Australia for offence other offence for which he was surrendered – Whether verdicts unreasonable or cannot be supported by the evidence – Whether verdicts inconsistent – Leave to appeal refused.

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Counsel
Applicant:		Ms G Connelly
Respondent:		Ms J Warren
Solicitors
Applicant:	Adrian Paull Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
OSBORN JA:

Introduction

On 2 March 2023, the applicant was arraigned in the County Court on an indictment that charged him with committing an indecent act with a child under the age of 160F[1] (two charges – charges 1 and 5); taking part in an act of sexual penetration with a child under 161F[2] (four charges – charges 2, 3, 6 and 7); and attempting to take part in an act of sexual penetration with a child under 162F[3] (one charge – charge 4). He pleaded not guilty and a jury was empanelled.
[1]Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014), s 47(1).
[2]Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014), s 45(1).
[3]Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014), ss 45(1) and 321M.
Following a submission by defence counsel at the conclusion of the prosecution case that there was no case to answer, on 14 March 2023 the trial judge directed that verdicts of not guilty be entered on the record on charges 1 to 5.3F[4] The trial then proceeded on charges 6 and 7, resulting in (majority) verdicts of guilty being delivered on both charges on 17 March 2023.4F[5]
[4]See Criminal Procedure Act 2009, s 241(2)(b) (‘CPA’).
[5]Following a plea, on 16 June 2023 the applicant was sentenced to a total effective sentence of three years’ imprisonment with a non-parole period of 16 months.
The applicant now seeks leave to appeal against his conviction on two grounds:
1The conviction on charge 6 should be quashed and a verdict of acquittal entered because:
(a) The judge erred in refusing permanently to stay charge 6 (as amended) of … and the applicant’s trial on charge 6 was an abuse of process; and/or
(b) The judge erred in permitting the trial to proceed in contravention of s 42 of the Extradition Act.
2The verdicts of the jury on charges 6 and 7 are unreasonable and cannot be supported by the evidence.
(a) The verdicts were not open on…

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 Didulica v The King

Details

AGLC: Didulica v The King [2023] VSCA 292
Case: [2023] VSCA 292
Decision Date: 30 November 2023

CaseChat Overview and Summary

Didulica v The King is an Australian criminal law case in which the appellant, Didulica, sought leave to appeal against his conviction for indecent acts with, and sexual penetration of, a child under 16. The case was heard in the High Court of Australia, the highest court in the Australian judicial system. The appellant argued that the verdicts were unreasonable, could not be supported by the evidence, and were inconsistent with each other.

The legal issues that the court had to address were whether the appellant was tried in Australia for an offence other than the offence for which he was surrendered, and whether the verdicts were unreasonable or could not be supported by the evidence. The court also had to consider whether the verdicts were inconsistent. These issues arose from the appellant's argument that he was not tried for the offence for which he was surrendered, and that the verdicts were inconsistent with each other.

The court rejected the appellant's arguments and held that he was tried for the offence for which he was surrendered, and that the verdicts were reasonable and supported by the evidence. The court held that the verdicts were not inconsistent with each other and dismissed the appeal. The court held that the appellant's argument that he was not tried for the offence for which he was surrendered was unfounded, as the indictment charged him with the offence for which he was surrendered. The court also held that the verdicts were not unreasonable or unsupported by the evidence, as the evidence showed that the appellant committed the offences. The court held that the verdicts were consistent with each other, as they were based on the same evidence and did not contradict each other.

The court refused the appellant leave to appeal, and the conviction stood. The court held that the appeal was without merit and did not raise any substantial question of law. The court held that the verdicts were safe and satisfactory, and that there was no reason to interfere with them. The court held that the appellant's arguments were without merit and did not warrant the grant of leave to appeal.

Orders