[1]To avoid the risk of identifying the alleged victim of a sexual offence, these reasons for judgment have been anonymised by the adoption of a pseudonym in place of the name of the applicant.
CRIMINAL LAW – Appeal – Conviction – Incest and other sexual offending against step-daughters and another child under 16 – Prosecution failed to obtain alleged post-offence call charge records of communications between the applicant and step-daughters – Whether duty of disclosure required prosecution to obtain the records for applicant’s benefit – No duty on prosecution to obtain evidence not in its possession – Whether informant capable of being cross-examined on call charge records – Document not the informant’s so cross-examination not permitted – Prosecution did not call stepson to give evidence or obtain a statement – Whether trial judge obliged to give a direction under s 43 of the Jury Direction Act 2015 – No direction required – Whether generality of tendency evidence deprived it of significant probative value – Tendency evidence admissible – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Incest and other sexual offending against child under 16 – Whether orders for cumulation offended against principle of totality – Whether sentence manifestly excessive – Leave to appeal refused.
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Counsel
Applicant
Mr M Habib and Ms M Cananzi
Respondent
Ms E Ruddle KC with Ms E Allan
Solicitors
Applicant
Brooks Lawyers
Respondent
Ms A Hogan, Solicitor for Public Prosecutions
NIALL CJ PRIEST JA LYONS JA:
Introduction
On 9 February 2024, a jury empanelled in the County Court to try him found the applicant guilty of a number of sexual offences against three complainants, ‘SB’ and ‘CB’ — referred to throughout the trial as ‘the sisters’ — and ‘AF’. SB and CB were the applicant’s step-daughters — he having married their mother, ‘BS’, in 2002 — and AF was BS’s younger step-sister.
Following a plea in mitigation, the trial judge sentenced the applicant to a total effective sentence of 12 years’ imprisonment, with a non-parole period of eight years and six months, in accordance with the following table:
Charge
Comp
Offence
Sentence
Cumulation
1
AF
Indecent act with child under 16[2]
12 months
Nil
2
AF
Sexual penetration of child under 16[3]
4 years
15 months
5
SB
Indecent act with child under 16[4]
12 months
3 months
6
SB
Indecent act…
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
AGLC
Nelson (a pseudonym) v The King [2025] VSCA 226
Case
[2025] VSCA 226
Decision Date
CaseChat Overview and Summary
The appellant, Nelson, appealed against his conviction and sentence for incest and other sexual offences against his step-daughters and another child under 16. The appeal was heard by the Court of Criminal Appeal. The central issue was whether the prosecution was required to disclose certain call charge records and whether the trial judge should have directed the jury under section 43 of the Jury Directions Act 2015. Additionally, the appeal addressed whether the tendency evidence presented was admissible and whether the sentence imposed was manifestly excessive.
The court held that there was no duty on the prosecution to obtain evidence that was not in its possession, and thus, it was not required to procure the call charge records for the applicant. Furthermore, the informant could not be cross-examined on the records since they did not belong to the informant, and the prosecution did not call the stepson to testify or obtain a statement. The court found that the trial judge was not obliged to give a direction under section 43 of the Jury Directions Act 2015, as the evidence was not rendered insignificant by its generality. The tendency evidence was deemed admissible, as it had substantial probative value.
The appeal against the conviction was dismissed, and the appeal against the sentence was also dismissed. Consequently, the Court of Criminal Appeal refused leave to appeal both the conviction and the sentence.