Poole (a pseudonym) v The King - [2025] VSCA 127

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0040

DARRYL POOLE (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]The applicant’s name has been anonymised to protect the identities of the complainants.

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JUDGES:	EMERTON P, KENNEDY and ORR JJA
WHERE HELD:	Bendigo
DATE OF HEARING:	15 May 2025
DATE OF JUDGMENT:	5 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 127
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v [Poole] (County Court of Victoria, Judge Quin, 9 February 2024)

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CRIMINAL LAW – Appeal – Conviction – Three charges of rape, as well as charges of violence, including charge of threat to kill complainant – Tendency evidence adduced of applicant’s tendency to engage in violence against females – Evidence of uncharged act of threat made to complainant concerning her children led in relation to threat to kill charge – Evidence inadmissible and not subject of tendency notice – Whether substantial miscarriage of justice – Where mixed verdicts – Where jury acquitted applicant of charge of threat to kill – Where extensive evidence of applicant’s poor character included the making of a threat in front of complainant’s children – No substantial miscarriage of justice – Appeal dismissed.

Criminal Procedure Act 2009, s 276(1)(b); Evidence Act 2008, ss 97, 137.

Karam v The King [2023] VSCA 318, applied.

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Counsel
Applicant:		Mr T Battersby
Respondent:		Ms D Piekusis KC with Ms E Allan
Solicitors
Applicant:	Docherty Legal
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
KENNEDY JA
ORR JA:

The applicant was charged on indictment with 10 offences. On 25 September 2023 the applicant was convicted by jury verdict of seven offences, including three offences of rape. The jury also found the applicant not guilty in respect of two assaults (charges 6 and 7) and of making a threat to kill (charge 10).
On 9 February 2024 the applicant was relevantly sentenced to a total effective sentence of 14 years and 3 months’ imprisonment, with a non-parole period of 9 years and 6 months.
The applicant seeks leave to appeal against conviction on the following proposed ground:
The trial judge erred by allowing the introduction of evidence regarding uncharged acts that resulted in prejudice to the applicant.[2]
[2]The applicant originally relied on a second proposed ground to the effect that the judge erred by refusing an application to discharge the jury. However, this ground was abandoned at the hearing of this application in light of relevant authorities that support the proposition that, following conviction, an appeal is not brought against a failure to discharge the jury, but against the conviction: see Maric v The Queen (1978) 52 ALJR 631, 634 (Gibbs ACJ, Mason J agreeing at 636, Jacobs J agreeing at 636, Aickin J agreeing at 637); Qadir (a pseudonym) v The King [2023] VSCA 155, [24] (Priest, Walker and Kaye JJA).
For the following reasons, we have determined that, although the application for leave to appeal should be granted, the appeal…

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 Poole (a pseudonym) v The King

Details

AGLC: Poole (a pseudonym) v The King [2025] VSCA 127
Case: [2025] VSCA 127
Decision Date: 5 June 2025

CaseChat Overview and Summary

The case before the court was an appeal by a person referred to as Poole, against his conviction on three charges of rape, as well as charges of violence, including a charge of threat to kill the complainant. The trial judge had admitted evidence of Poole's tendency to engage in violence against females, as well as an uncharged act of threat made to the complainant concerning her children in relation to the threat to kill charge. The court had to decide whether the admission of this evidence constituted a substantial miscarriage of justice.

The court held that the evidence of the uncharged act of threat was inadmissible and not subject to a tendency notice, as required by the Evidence Act. The court held that the jury had acquitted Poole of the threat to kill charge, and that there were mixed verdicts in the case. The court held that there was extensive evidence of Poole's poor character, including the making of a threat in front of the complainant's children. However, the court held that there was no substantial miscarriage of justice in the admission of this evidence, and dismissed the appeal.

The court noted that the trial judge had considered the relevance and probative value of the evidence, as well as the potential for prejudice and confusion. The court held that the trial judge had exercised his discretion properly, and that there was no error in admitting the evidence. The court also noted that the jury had been properly directed on the limited purpose for which the evidence could be considered.

The final orders of the court were that the appeal be dismissed, and that the convictions and sentences imposed by the trial judge be upheld. The court did not make any orders as to costs.

Orders