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Nimely (a pseudonym) v The King

Nimely (a pseudonym) v The King

Case [2023] VSCA 20 15 February 2023

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0059

LIONEL NIMELY (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, 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, TAYLOR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2023
DATE OF JUDGMENT:	15 February 2023
DATE OF REASONS:	21 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 20
JUDGMENT APPEALED FROM:	DPP v [Nimely] (Unreported, County Court of Victoria, 17 August 2021, Judge Wilmoth) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Sexual offending involving child under 16 – Distress – Judge misdirected jury that complainant’s distress could be used as supporting evidence – Judge failed to warn jury as to limitations on the use of such evidence – Appeal allowed – New trial ordered.

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Counsel
Applicant:		Mr T Kassimatis KC with Ms G Connelly
Respondent:		Ms R Harper
Solicitors
Applicant:	James Dowsley & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
KAYE JA:

Introduction

Following a 10 day trial, on 17 August 2021 a jury in the County Court found the appellant, now aged 33 years,[2] guilty of three charges of sexual assault of a child[3] (charges 1, 4 and 12); two charges of rape[4] (charges 6 and 8); and six charges of sexual penetration of a child under 16[5] (charges 2, 3, 5, 11, 13 and 14), and acquitted him of one charge of rape.[6] A jury in an earlier trial, conducted in May and June 2021, had been unable to reach verdicts.
[2]His date of birth is 1 March 1989.
[3]Crimes Act 1958, s 49D(1).
[4]Crimes Act 1958, s 38(1).
[5]Crimes Act 1958, s 49B(1).
[6]On 1 December 2021, the judge sentenced the applicant to a total effective sentence of 10 years and six months’ imprisonment, with a non-parole period of six years.
The applicant sought leave to appeal on two grounds as follows:
1. A substantial miscarriage of justice occurred because:
~~(a)the prosecutor invited the jury to find that the complainant’s distress when reporting her alleged abuse to her parents provided indirect support for her claims;~~
(b)the trial judge directed the jury that they could use the complainant’s distress when reporting her alleged abuse to her parents as indirect support for her claims;
(c)the trial judge did not direct the jury that, before they used the complainant’s distress as indirect support for her claims, they needed to be satisfied that it was caused by the alleged offending, and not by some other cause; and
(d)the trial judge did not warn the jury about the inherent limitations of distress evidence.
2.A substantial miscarriage of justice occurred because the trial judge did not direct the jury in terms attributed to Liberato v The Queen (1985) 159 CLR 507.
At the conclusion of argument in this Court on 15 February…

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 Nimely (a pseudonym) v The King

Details

AGLC: Nimely (a pseudonym) v The King [2023] VSCA 20
Case: [2023] VSCA 20
Decision Date: 15 February 2023

CaseChat Overview and Summary

The appellant, using the pseudonym Nimely, appealed against his conviction for sexual offences involving a child under 16. The case was heard and determined by the High Court of Australia. The central issue in this appeal was whether the trial judge had misdirected the jury regarding the use of the complainant's distress as evidence in the case. Specifically, the court had to determine whether the judge failed to properly instruct the jury on the limitations of using such evidence, and if this constituted a misdirection that warranted a new trial.

The court considered the legal principles surrounding the admissibility and use of distress evidence in sexual offence cases. It was established that while the complainant's distress could be relevant, it could not be used as direct evidence of the truth of the allegations. The judge's failure to adequately warn the jury about these limitations was a critical point of contention. The court held that the misdirection was significant enough to potentially affect the outcome of the trial, thereby warranting a new trial to ensure a fair process. The appeal was allowed based on these findings, and the conviction was quashed.

The High Court ordered a new trial to be conducted, ensuring that the jury would be properly instructed on the use of distress evidence. This decision underscored the importance of judicial instructions in guiding juries on the nuanced application of evidence in sexual offence cases, highlighting the need for careful and precise direction to avoid misdirection that could compromise the fairness of the trial.

Orders