Shaun Bloomfield v The Queen - [2020] VSCA 241

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2019 0229

SHAUN BLOOMFIELD	Applicant
v
THE QUEEN	Respondent

- and -

S APCR 2019 0125

LUKE MERRYFULL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL, T FORREST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 September 2020
DATE OF JUDGMENT:	17 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 241
JUDGMENT APPEALED FROM:	[2019] VCC 509 (Judge Mullaly)

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CRIMINAL LAW – Appeal – Conviction – Application for leave to appeal against conviction – One accused convicted of two charges of rape and one charge of sexual assault – Another accused convicted of one charge of rape – Co-accused and complainant knew each other – Whether substantial miscarriage of justice because inadmissible and unfairly prejudicial evidence was placed before jury and judge did not give a proper direction – Whether substantial miscarriage of justice because fresh evidence giving rise to significant possibility jury might have acquitted if evidence available at trial – Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 applied – Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44 applied – Application for leave to appeal granted in relation to fresh evidence ground only – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Bloomfield	Mr R Nathwani	SWD Legal
For the Applicant Merryfull	Mr R F Edney	SWD Legal
For the Respondent	Ms D Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
T FORREST JA
WEINBERG JA:

The applicants were jointly presented on an indictment alleging four sexual offences against the same complainant (‘C’). Shaun Bloomfield faced three charges, two of rape and one of sexual assault, and Luke Merryfull faced a single charge of rape. On 8 February 2019, following a trial before Judge Mullaly and a jury, the applicants were found guilty of all charges and sentenced to terms of imprisonment.[1]
[1]Bloomfield was sentenced to a total effective sentence of 5 years, 8 months’ imprisonment with a non-parole period of 3 years, 4 months; and Merryfull was sentenced to a total effective sentence of 4 years, 10 months’ imprisonment with a non-parole period of 2 years, 10 months.

The offending took place in the early hours of 3 April 2016, following a birthday party the previous evening. The applicants and C were guests at the party and well known to each other. It was not in dispute that the sexual activity which formed the basis of the charges took place; the issue was one of consent. The main evidence was given by C, although the prosecution also adduced evidence from a number of witnesses to whom C had reported the offending in its immediate aftermath. Two of those witnesses were ‘LH’ and her daughter, ‘RH’, who had been at the party and had collected C when she telephoned RH in distress. The applicants gave evidence in the trial, which must have been rejected by the jury.

The applicants seek to leave to appeal on…

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 Shaun Bloomfield v The Queen

Details

AGLC: Shaun Bloomfield v The Queen [2020] VSCA 241
Case: [2020] VSCA 241
Decision Date: 17 September 2020

CaseChat Overview and Summary

Shaun Bloomfield, one of two men convicted of various sexual offences, sought leave to appeal against his conviction. The appeal was heard in the High Court of Australia. Bloomfield was convicted of two counts of rape and one count of sexual assault, while his co-accused was convicted of one count of rape. The complainant in the case knew both accused men prior to the events in question.

The legal issues before the court were whether there was a substantial miscarriage of justice due to inadmissible and unfairly prejudicial evidence being presented to the jury and the trial judge, and whether there was a substantial miscarriage of justice because of fresh evidence that was unavailable at the time of the trial. The court was required to consider whether the inclusion of such evidence led to a significant possibility that the jury might have acquitted if the fresh evidence had been available. The court applied the principles established in Mickelberg v The Queen and Rodi v Western Australia in its consideration.

The court found that there was no substantial miscarriage of justice in relation to the first issue as the evidence in question did not impact the overall fairness of the trial. However, the court did find a substantial miscarriage of justice in relation to the fresh evidence. The fresh evidence, which was unavailable at the time of the trial, presented a significant possibility that the jury might have acquitted if it had been available. The court granted leave to appeal on this ground only, and the appeal was allowed. The decision underscores the importance of ensuring that all relevant evidence is available to the jury to avoid potential miscarriages of justice.

Orders