Knowles (a pseudonym) v The Queen

[2015] VSCA 141

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0146

TOM KNOWLES (A PSEUDONYM) [1]

V

THE QUEEN

[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:	ASHLEY, REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 and 22 MAY 2015
DATE OF JUDGMENT:	9 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 141
JUDGMENT APPEALED FROM:	DPP v [Knowles] (Unreported, County Court of Victoria, Judge Chettle, 5 December 2013)

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CRIMINAL LAW — Conviction — Application for leave to appeal against conviction —Whether evidence of child complainant impermissibly procured by leading questions during VARE interview — Whether verdict of jury unsafe and unsatisfactory having regard to complainant’s evidence — Application for leave to adduce ‘fresh’ evidence — Whether evidence ‘fresh’ — Conduct of trial counsel — Whether trial unfair or productive of miscarriage of justice — Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue O’Brien George Lawyers
For the Crown	Ms D I Piekusis	Ms V Anscombe, Acting Solicitor for Public Prosecutions

ASHLEY, REDLICH and PRIEST JJA:

1. On 25 October 2013, after deliberating for a day, a jury in the County Court found Tom Knowles guilty of three charges involving child sexual offences.  On 5 December 2013, the judge imposed a total effective sentence of seven years’ imprisonment and fixed a non-parole period of five years’ imprisonment.

Grounds

1. Knowles now seeks leave to appeal against conviction; and, if leave is granted, that his appeal be allowed.  After protracted discussion with the Court on the first day of hearing, his counsel finalised the grounds of appeal as follows:

   1.A substantial miscarriage of justice was caused because that part of the complainant’s evidence that related to count 1 (vaginal penetration) was procured by leading questions and not addressed by directions to the jury.

   2.The verdict of the jury was unsafe and unsatisfactory having regard to the evidence of the complainant.

   3.A substantial miscarriage of justice occurred because of the failure of applicant’s counsel to adduce evidence from [‘J’] in the trial of the applicant.

   PARTICULARS

   (a)       Vagina oil;

   (b)       Small dildo;

   (c)       Abuse by [complainant’s father]:

   (i) Similarities between abuse of complainant   and that suffered by J.

   4.The evidence of J should be received on appeal and would, if accepted, give rise to a substantial miscarriage of justice.

   Circumstances

1. The Crown case, accepted by the jury, was that on the night of 24 August 2012, whilst the applicant was babysitting the two children of his partner J (respectively, her niece and nephew, because the children’s father was her brother), he entered the niece’s bedroom, she being a child then aged 5 years and 11 months, and, whilst there, digitally penetrated the child’s vagina,[2] digitally penetrated her anus[3] and masturbated to ejaculation in the child’s presence.[4]

   [2]Charge 1, sexual penetration of a child under 16 years, s 45(1) Crimes Act1958