Kapoor (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0145

SANDEEP KAPOOR (A PSEUDONYM)	Applicant
v
THE KING	Respondent

---

JUDGES:	BEACH, WHELAN and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2023
DATE OF JUDGMENT:	27 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 260
JUDGMENT APPEALED FROM:	[2023] VCC 1280 (Judge Hassan)

---

CRIMINAL LAW – Application for leave to appeal conviction – Trial conducted in manner inconsistent with applicable ruling on tendency – Substantial miscarriage of justice conceded by prosecution – Leave granted, appeal allowed, new trial ordered.

Evidence Act 2008 s 97.

---

Counsel
Applicant:	Mr PJ Smallwood
Respondent:	Mr BF Kissane KC with Ms B Goding
Solicitors
Applicant:	Doogue + George Defence Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
WHELAN JA
KAYE JA:

On 8 March 2023, the applicant was convicted after a trial before a jury of two charges of rape (charges 1 and 3), two charges of making threat to kill (charges 4 and 5), and one charge of intentionally causing injury (charge 6). The complainant on each of the charges was the applicant’s wife. The threats to kill were alleged to be threats to kill her (charge 4), and to kill her sister (charge 5).
The applicant has applied for leave to appeal his conviction on a number of grounds. For present purposes, it is only necessary to say that it is contended that there was a substantial miscarriage of justice as a result of the manner in which tendency evidence was left to the jury (proposed ground 1), and as a result of the jury not being given a direction to avoid the risk of improper use of ‘other misconduct evidence’[1] adduced by the prosecution (proposed ground 2).
[1]Defined in s 26 of the Jury Directions Act 2015 as including ‘tendency evidence’, ‘evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue’ and ‘evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed’.
The prosecution concede that a substantial miscarriage of justice has occurred, by reason of the matters the subject of those two proposed grounds, and that a new trial should be ordered.
After considering the material and hearing submissions, we ordered at the conclusion of the hearing that leave to appeal be granted on proposed grounds 1 and 2, that the appeal against conviction be allowed, that the convictions and sentences be set aside, and that there be a new trial. We said reasons would be delivered later. These are those reasons.
The applicant’s trial had initially begun in August 2022, before Judge Georgiou. The prosecution had given two notices of intention to adduce evidence of tendency pursuant to s 97(1)(a) of the Evidence Act 2008, which notices were amended in the course of a pre‑empanelment hearing before Judge Georgiou. Judge Georgiou delivered a detailed ruling on the admissibility of the tendency evidence the subject of the two amended notices.[2]
[2]DPP (Vic) v [Kapoor] (County Court of Victoria, Judge Georgiou, 29 August 2022) (‘Reasons’).
One of the amended notices, referred to as ‘Notice A’, asserted a tendency to engage in sexual activity in circumstances where it was clear that the complainant did not consent, or in circumstances where the applicant did not reasonably believe that the complainant was consenting to the sexual activity. That notice set out the evidence relied upon in six ‘rows’. The evidence was of both charged and uncharged sexual activity. The prosecution sought to rely upon the asserted tendency in support of the rape charges. Judge Georgiou ruled that all of the evidence was admissible for that specified purpose.[3]
[3]Reasons, [101]–[105], [114].
The second amended notice, referred to as ‘Notice B’, asserted a tendency to threaten, be physically violent, and be physically and financially controlling. In the course of submissions before Judge Georgiou the prosecutor disavowed reliance upon the financially controlling aspect. This notice set out the evidence relied upon in 17 ‘rows’. The evidence was of restrictions imposed upon the complainant’s movement and access to means of communication, abuse, assaults, and threats; including the charged threats to kill (row 16) and the charged assault (row 17). There were two items of evidence (rows 4 and 5) which contained a sexual element (requirements allegedly imposed on the complainant to remove her clothes).
Judge Georgiou ruled that the evidence in rows 1–3, 6, 8–10 and 12–17 of Notice B did establish the asserted tendency but that that evidence did not have significant probative value (save for the evidence in rows 16 and 17 which concerned charged conduct).[4] He ruled that the evidence in rows 7 and 11 was too general.[5] The two items of evidence in Notice B which had a sexual element were in rows 4 and 5. He ruled they did have significant probative value and were admissible to prove the tendency asserted in Notice B but only in support of the rape charges.[6]
[4]Reasons, [108]–[110].
[5]Reasons, [112].
[6]Reasons, [113], [115].
Judge Georgiou further ruled that the evidence in Notice B which could not be relied upon to prove the asserted tendency (namely, the evidence in rows 1–3, 6, 8–10 and 12–17), could however be relied upon as relationship evidence and as establishing the relevant context.[7]
[7]Reasons, [111], [116].
The trial before Judge Georgiou did not proceed to a verdict.
In February 2023, the matter came on for trial again before a different County Court judge, Judge Hassan. The applicant was unrepresented, save that counsel was engaged on his behalf to cross‑examine protected witnesses.
Prior to empanelment, the prosecutor told the new trial judge that ‘the prosecution are content to comply with and … will comply with His Honour Judge Georgiou’s ruling in relation to the tendency and other matters’.[8]
[8]Transcript of Proceedings, DPP (Vic) v [Kapoor] (County Court of Victoria, CR-21-00386, Judge Hassan, 23 February 2023) 8 (A Grant).
Unfortunately, that simply did not occur.
The complainant gave evidence of matters the subject of both notices which had been ruled upon by Judge Georgiou.
In foreshadowing before the judge what he proposed to say as to tendency in his final address, the prosecutor asserted reliance on both the sexual conduct tendency (as had been described in Notice A) and the other conduct tendency (as had been described in Notice B), and stated that that evidence was relied upon as making more likely the events which were the basis of each of the charges.[9]
[9]Transcript of Proceedings, DPP (Vic) v [Kapoor] (County Court of Victoria, CR-21-00386, Judge Hassan, 6 March 2023) 504–5 (A Grant).
In closing address, the prosecutor did rely upon both the asserted tendencies as he had foreshadowed that he would. He recounted the evidence the complainant had given about both sexual and other conduct, charged and uncharged. By reference to that evidence, he asserted reliance on both of the asserted tendencies, without confining the other conduct tendency (Notice B) to rows 4 and 5, and he submitted that those tendencies rendered more likely the events which were the basis of all the charges.[10]
[10]Transcript of Proceedings, DPP (Vic) v [Kapoor] (County Court of Victoria, CR-21-00386, Judge Hassan, 7 March 2023) 543–53 (A Grant).
The judge charged the jury on the basis that both the asserted tendencies were relied upon by the prosecution, referring to a wide range of the Notice B conduct (not just the conduct the subject of rows 4 and 5 which had a sexual element), and telling the jury that all of that conduct was relevant to the likelihood that the applicant had committed all the charges on the indictment, ‘whether sexual or not’. In those respects the charge replicated the manner in which those issues had been dealt with by the prosecutor.[11]
[11]Transcript of Proceedings, DPP (Vic) v [Kapoor] (County Court of Victoria, CR-21-00386, Judge Hassan, 8 March 2023) 623–5 (A Grant).
Judge Georgiou had ruled that the Notice A tendency evidence was admissible for that purpose but only on the rape charges. Judge Georgiou had ruled the Notice B tendency evidence was not admissible for the tendency purpose, save for the two items which had a sexual element (rows 4 and 5), the relevance of which he confined to the rape charges. He had ruled that the other Notice B evidence (save for the conduct the subject of rows 7 and 11 which were too general) could be relied upon as relationship and context evidence.
The prosecutor’s address and the judge’s charge were contrary to that ruling, notwithstanding that the prosecutor had told the judge at the outset of the trial that that ruling would govern the issue. They were contrary to the ruling in at least two respects.
First, each of the two asserted tendencies was said by the prosecutor to be relevant to all of the charges, when the ruling had confined them to the rape charges. The judge did confine the sexual tendency (Notice A) evidence to the rape charges, but expressly extended the relevance of the other conduct tendency (Notice B) to all of the charges.
Second, the ambit of the evidence on the other conduct tendency (Notice B) had been confined by the ruling to rows 4 and 5 (the requirements to remove clothes), yet both the prosecutor and the judge included the conduct, which had been ruled to be admissible only as relationship or context evidence, in their description of the evidence relevant to the asserted tendency.
In the light of the circumstances set out, the prosecution concession was properly made.
The application for leave to appeal includes other proposed grounds contending that a miscarriage of justice occurred in the trial on further and, in some respects, wider bases than the grounds which have succeeded. Two of those proposed grounds (proposed grounds 3 and 4) contend, in effect, that, at least as matters transpired in the trial, the leading of the evidence which Judge Georgiou had ruled could be lead, had resulted in a substantial miscarriage of justice.
Before us, counsel for both sides agreed that the issues of tendency and relationship/context evidence[12] should be reconsidered afresh on the retrial, without the judge on the retrial being inhibited by the ruling of Judge Georgiou. As we indicated in the hearing, we consider that that is the course which should be followed.
[12]As to relationship and context evidence and the dangers of its admission generally, see Henderson (a pseudonym) v The Queen [2017] VSCA 237, [68], [71] (Beach, Ferguson and Coghlan JJA).
---

[2023] VSCA 260

27 October 2023