Kristopher Aleski (a pseudonym)[1] v The Queen - [2020] VSCA 124

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0242

KRISTOPHER ALESKI (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identifying the alleged victim of 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:	MAXWELL P, NIALL and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 March 2020
DATE OF JUDGMENT:	15 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 124
JUDGMENT APPEALED FROM:	[2019] VCC 2101 (Judge Johns)

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CRIMINAL LAW – Appeal – Conviction – Indecent act with or in presence of a child under 16 – Sexual assault of a child under 16 – Sexual penetration of a child under 16 – Whether context or relationship evidence was admitted in error – Evidence Act 2008 s 137 – Whether guilty verdicts were unreasonable and unsupported by the evidence – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Dr M FitzGerald	Doogue + George Defence Lawyers
For the Respondent:	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
NIALL JA
WEINBERG JA:

Following a trial before Judge Johns and a jury, the applicant was convicted of six sexual offences against a single complainant, BC.[2] The offending spanned 2016 to 2018 when BC was between 10 and 12 years of age and the applicant was aged between 16 and 18 years. The applicant was the boyfriend of BC’s older sister, CC, who was two years older than BC.
[2]Charge 2 was an alternative to charge 1 and it is convenient to refer to six charges.

The offending occurred inside the complainant’s family home. During that time, BC lived with her mother and two younger siblings in a three bedroom house. During this period, CC and the applicant lived at various places and moved a number of times. However, for at least part of the time the applicant and CC lived in the family home and shared a bedroom with BC, which contained a bed on which they slept and a couch on which BC slept. In October 2017, the applicant and CC had a child, a boy, who also lived at the house.

On 1 March 2018, police conducted a video recorded interview (‘VARE’) with BC. That recording constituted her evidence in chief at the trial and the principal evidence in support of the charges.

In addition to evidence relating to the charges, BC referred in her VARE to a number of uncharged acts. With one exception, the uncharged acts were admitted as tendency evidence to prove that the applicant had an improper sexual interest in BC and a willingness to act on it. The single exception was evidence that on one occasion the applicant had lifted up BC’s skirt with his foot. The judge ruled that the evidence was not admissible as tendency evidence but was admissible as context or relationship evidence. The admission of that…

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: [2020] VSCA 124
Decision Date: 15 May 2020

CaseChat Overview and Summary

Kristopher Aleski, under a pseudonym, appealed against his conviction and sentence for multiple sexual offences against a child under 16 years of age. The case was heard in the High Court of Australia, which reviewed the decision of the Supreme Court of Victoria. Aleski was convicted of engaging in an indecent act with a child under 16, sexually assaulting a child under 16, and sexually penetrating a child under 16. The primary legal issue in the appeal was whether evidence of the context or relationship between Aleski and the victim was admitted in error, potentially influencing the jury's verdict. Additionally, Aleski argued that the guilty verdicts were unreasonable and unsupported by the evidence presented.

The court examined the admissibility of the contested evidence under section 137 of the Evidence Act 2008, which allows for the admission of evidence that is not directly relevant to an issue in the proceeding if it has significant probative value. The High Court found that the evidence in question was properly admitted as it had significant probative value in understanding the nature of the relationship and the context of the offences. The court further determined that the jury's verdicts were not unreasonable or unsupported by the evidence. The High Court held that the jury was entitled to infer the facts necessary to support the verdicts based on the evidence presented.

In light of the above, the High Court dismissed Aleski's appeal and denied his application for leave to appeal. The convictions and sentences were upheld, affirming the findings and decisions of the Supreme Court of Victoria.

Orders