Lewers (a pseudonym) v The Queen (No 2) - [2021] VSCA 351

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0028

JASPER LEWERS (a pseudonym)[1]	Applicant
v
THE QUEEN (NO 2)	Respondent

[1]To ensure that there is no possibility of identifying the alleged victims 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:	PRIEST, KYROU and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 November 2021
DATE OF JUDGMENT:	13 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 351
JUDGMENT APPEALED FROM:	DPP v Lewers (a pseudonym) (County Court of Victoria, Judge Higham, 31 October 2018)

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CRIMINAL LAW – Appeal – Conviction – Application for leave to bring second appeal – Whether fresh and compelling evidence that should, in the interests of justice, be considered on appeal – Whether reliable evidence – Whether evidence may affect credibility of complainants’ account – Application refused – Criminal Procedure Act 2009 s 326A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Gillespie-Jones	Nicholas O’Donohue & Co
For the Respondent	Mr B Kissane QC with Mr T Bourbon	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
NIALL JA:

Following a trial before Judge Higham and a jury, the applicant was convicted of a number of charges relating to offending against his twin daughters, GZ and RZ. The most serious charges were of incest. He was sentenced to a total effective sentence of 12 years and 3 months’ imprisonment. He sought leave to appeal his conviction. That application was refused.[2] He now applies under s 326A of the Criminal Procedure Act2009 (‘the CPA’) for leave to appeal a second time.
[2]Lewers (a pseudonym) v The Queen [2019] VSCA 272.

For the reasons that follow we would refuse the application.

Second and subsequent appeals

The power in this Court to grant leave to appeal for a second or subsequent appeal is available where the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.[3]
[3]CPA s 326C.

Section 326C of the CPA defines ‘fresh’ and ‘compelling’ in the following way:

…
(3) In this section, evidence relating to an offence of which a person is convicted is—
(a) fresh if—
(i) it was not adduced at the trial of the offence; and
(ii)it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and

(b)       compelling if—
(i)        it is reliable; and
(ii)       it is substantial; and
(iii)      either—
(A) it is highly probative in the context of the issues in dispute at the trial of the offence; or
(B) it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.

(4) Evidence that would be admissible on a second or subsequent appeal is not precluded from being fresh or compelling only because it would not have been admissible in the earlier trial of the offence that resulted in the…

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: [2021] VSCA 351
Decision Date: 13 December 2021

CaseChat Overview and Summary

In the case of Lewers (a pseudonym) v The Queen (No 2), the appellant, Lewers, sought leave to bring a second appeal against his conviction for offences arising from sexual assaults. The original convictions were upheld by the Court of Appeal in an earlier decision. The application for leave to appeal was heard by the High Court of Australia. The primary focus of the appeal was whether there was fresh and compelling evidence that should be considered on appeal, which could potentially affect the credibility of the complainants’ accounts.

The legal issues before the court were whether the evidence presented by Lewers was reliable and whether it had the potential to impact the credibility of the complainants' testimonies. The court examined the nature and reliability of the evidence, including the circumstances in which it was obtained and any factors that could affect its admissibility. The court also considered the relevance of the evidence in relation to the credibility of the complainants’ accounts and whether it could potentially lead to a different outcome if the appeal were to proceed.

In dismissing the application, the court found that the evidence presented by Lewers did not meet the threshold of being fresh and compelling. The evidence was deemed not to be sufficiently reliable and did not have a significant impact on the credibility of the complainants' accounts. The court concluded that the evidence, even if accepted, would not likely lead to a different outcome in the appeal. Consequently, the application for leave to bring a second appeal was refused under the Criminal Procedure Act 2009.

The court's decision was based on a careful assessment of the evidence and its potential impact on the original conviction. The court held that the evidence did not warrant reconsideration of the appeal, and thus, the convictions remained upheld. The final orders of the court were that the application for leave to bring a second appeal was dismissed.

Orders