Milky v The King - [2024] VSCA 136

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0091

SHAFIUL MILKY	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON ACJ, PRIEST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2024
DATE OF JUDGMENT:	17 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 136
JUDGMENT APPEALED FROM:	DPP v Milky [2023] VCC 712 (Judge Hampel)

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CRIMINAL LAW – Appeal – Conviction – Rape, indecent assault, sexual assault and compelling sexual touching – Medical practitioner convicted of sexual offending against several patients – Tendency evidence – Tendency notice – Trial judge impermissibly left to jury other misconduct evidence not included in tendency notice in support of tendency reasoning – Failure of prosecution to call witness – Whether the trial judge erred by failing to give a Jones v Dunkel direction with respect to call witnesses – Application for leave to appeal granted – Appeal allowed – New trial ordered.

Evidence Act 2009 ss 97, 101; Jury Directions Act 2015 s 43 discussed.

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Counsel
Applicant:		Mr T Kassimatis KC with Mr S Cash
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Wotton & Kearney
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON ACJ
PRIEST JA
KAYE JA:

Introduction

Throughout February and March 2023, the applicant was tried in the County Court on an indictment containing 15 charges of sexual offending against six adult female complainants: rape[1] (two charges – charges 7 and 8); indecent assault[2] (four charges – charges 1 to 4); sexual assault[3] (eight charges – charges 5 and 6, and 9 to 14); and sexual assault by compelling sexual touching[4] (one charge – charge 15). On 20 March 2023, the jury empanelled to try the applicant found him guilty by unanimous verdict on charges 1 to 6, and 9 to 13; and by majority verdict on charges 7, 8, 14 and 15.[5]
[1]Crimes Act 1958, s 38 (as amended by the Crimes Amendment (Sexual Offences) Act 2016). The maximum penalty is 25 years imprisonment.
[2]Crimes Act 1958, s 39 (as amended by the Crimes Amendment (Rape) Act 2007). The maximum penalty is 10 years imprisonment.
[3]Crimes Act 1958, s 40(1) (as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014). The maximum penalty is 10 years imprisonment.
[4]Crimes Act 1958, s 41 (as amended by the Crimes Amendment (Sexual Offences) Act 2016). The maximum penalty is 10 years imprisonment.
[5]Subsequently, on 27 April 2023, the judge sentenced the applicant to a total effective sentence of 14 years and 6 months’ imprisonment, with a non-parole period of 11 years. See DPP v Milky [2023] VCC 712.
By notices filed on 25 May 2023 (subsequently amended), the applicant sought leave to appeal against both his conviction and sentence.
As to conviction, the applicant relied ultimately on two proposed grounds:[6]
[6]The Court gave the applicant leave to add ground 3. Another ground, ground 2 on the original notice, was abandoned prior to 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.

Continue reading Milky v The King

Details

AGLC: Milky v The King [2024] VSCA 136
Case: [2024] VSCA 136
Decision Date: 17 June 2024

CaseChat Overview and Summary

Milky was charged with multiple offences of sexual violence against patients, including rape, indecent assault, sexual assault and compelling sexual touching. The case was heard in the High Court of Australia, which granted leave to appeal on the basis of the trial judge’s handling of evidence and directions to the jury. The primary issue for the court was whether the trial judge had erred in allowing certain other misconduct evidence to be presented to the jury despite it not being included in the tendency notice, and whether the trial judge should have directed the jury under Jones v Dunkel concerning the failure of the prosecution to call a particular witness.

The court found that the trial judge had indeed erred by allowing other misconduct evidence to be presented to the jury without including it in the tendency notice, which contravened the Evidence Act 2009. This error was significant as it potentially misled the jury regarding the scope of admissible evidence. Furthermore, the court determined that the trial judge should have provided a Jones v Dunkel direction to the jury about the prosecution's failure to call a particular witness. The court held that the failure to give such a direction was an error that could have affected the fairness of the trial.

In light of these errors, the High Court allowed the appeal and ordered a new trial. This decision underscores the importance of strict adherence to legal protocols regarding the admissibility of evidence and the proper use of tendency notices, as well as the necessity for trial judges to provide appropriate directions to the jury when relevant. The court's ruling highlights the significance of these procedural safeguards in ensuring the integrity and fairness of criminal trials.

Orders