Sutton (a pseudonym) v The King
[2025] VSCA 129
•5 June 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0106 |
| FRED SUTTON (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.
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| JUDGES: | WALKER, TAYLOR and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 May 2025 |
| DATE OF JUDGMENT: | 5 June 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 129 |
| JUDGMENT APPEALED FROM: | (County Court of Victoria, Judge Patrick, 1 August 2013) (conviction); (County Court of Victoria, Judge Patrick, 27 May 2014) (sentence) |
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CRIMINAL LAW – Appeal – Second or subsequent appeal – Sexual offending against children – Whether evidence on which applicant relied ‘fresh and compelling’ – Majority of evidence available to applicant at time of trial – Evidence that is ‘fresh’ not ‘compelling’ – Application for leave to appeal refused.
CRIMINAL LAW – Appeal – Applications for witnesses to attend and be examined pursuant to s 318 of Criminal Procedure Act 2009 – Applicant sought to examine large number of witnesses about a range of issues – Not in interests of justice to require witnesses to give evidence – Applications refused.
Criminal Procedure Act 2009, ss 318, 326A, 326C.
Van Beelen v The Queen (2017) 262 CLR 565; Roberts v The Queen (2020) 60 VR 431; Madafferi v The King [2024] VSCA 229, discussed.
| Counsel | |||
| Applicant: | In person | ||
| Respondent: | Mr T Bourbon | ||
Solicitors | |||
| Applicant: | Not applicable | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
WALKER JA
TAYLOR JA
KAYE JA:
In 2013 the applicant was charged with 41 offences, 40 of which involved sexual offending against five different child complainants and one of which was a charge of possession of child pornography. Subsequently, the prosecution filed fresh indictments that separated various of the charges. One of those, Indictment C10170864A.2 (the ‘principal indictment’), contained 25 charges in relation to three complainants: HM, AM and TB. HM and AM were the biological children of FM, with whom the applicant lived for a period. TB was a friend of HM. The applicant pleaded not guilty to those charges.
FM and the applicant had a child together: a son, JV, who was born in December 2007. After they separated, the applicant had custody of JV for a period.
In the course of the applicant’s trial on the principal indictment, the trial judge upheld a no case submission by defence and ordered that directed acquittals be entered on charges 11, 12, 14, 16, and 17. Later in the trial the trial judge upheld a separate no case submission by defence and ordered that directed acquittals be entered on charges 13, 15, and 18. In August 2013 the jury convicted the applicant on the remaining 17 charges and in May 2014 he was sentenced as follows:[2]
[2]R v [Sutton] (County Court of Victoria, Judge Patrick, 27 May 2014).
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1 Indecent act with a child under the age of 16[3] 10 years 6 months 1 month 2 Incest[4] 25 years 42 months 6 months 3 Indecent act with a child under the age of 16[5] 10 years 12 months — 4 Rape[6] 25 years 5 years Base 5 Incest[7] 25 years 45 months — 6 Incest[8] 25 years 4 years 12 months 7 Incest[9] 25 years 45 months — 8 Incest[10] 25 years 45 months 9 months 9 Incest[11] 25 years 45 months 9 months 10 Incest[12] 25 years 4 years 12 months 19 Incest[13] 25 years 46 months 10 months 20 Incest[14] 25 years 4 years 12 months 21 Rape[15] 25 years 4 years 12 months 22 Indecent act with a child under the age of 16[16] 10 years 18 months — 23 Indecent act with a child under the age of 16[17] 10 years 18 months 3 months 24 Indecent act with a child under the age of 16[18] 10 years 8 months 2 months 25 Indecent act with a child under the age of 16[19] 10 years 12 months 6 months Total Effective Sentence: 12 years 10 months’ imprisonment Non-Parole Period: 9 years Pre-sentence Detention Declared: 299 days Section 6AAA Statement: n/a Other Relevant Orders:
1. Forensic sample order.
2. Pursuant to s 34 of the Sex Offenders Registration Act 2004, length of reporting period is life.
[3]Contrary to s 47(1) of the Crimes Act 1958, as it stood at the time of the offending. (The numbering of offences in the Crimes Act has changed since the period during which the offending occurred. All references in these reasons to the provisions of the Crimes Act are to those provisions at the time of the offending.)
[4]Contrary to s 44(2) of the Crimes Act.
[5]Contrary to s 47(1) of the Crimes Act.
[6]Contrary to s 38(3)(a) and (4) of the Crimes Act.
[7]Contrary to s 44(2) of the Crimes Act.
[8]Contrary to s 44(2) of the Crimes Act.
[9]Contrary to s 44(2) of the Crimes Act.
[10]Contrary to s 44(2) of the Crimes Act.
[11]Contrary to s 44(2) of the Crimes Act.
[12]Contrary to s 44(2) of the Crimes Act.
[13]Contrary to s 44(2) of the Crimes Act.
[14]Contrary to s 44(2) of the Crimes Act.
[15]Contrary to s 38(1) of the Crimes Act.
[16]Contrary to s 47(1) of the Crimes Act.
[17]Contrary to s 47(1) of the Crimes Act.
[18]Contrary to s 47(1) of the Crimes Act.
[19]Contrary to s 47(1) of the Crimes Act.
In July 2014 the applicant sought leave to appeal against conviction in relation to the principal indictment. He was represented by counsel on that application. This Court refused leave to appeal in September 2015.[20]
[20]Sutton (a pseudonym) v The Queen (2015) 47 VR 496; [2015] VSCA 251 (Maxwell P and Redlich JA) (‘First Appeal Reasons’).
In December 2014 the applicant’s trial in relation to Indictment C10170864B.1, which involved six charges relating to a different complainant, JG, commenced (the ‘JG indictment’). The jury was unable to reach a unanimous verdict and was discharged. The proceedings for the JG indictment were discontinued in October 2015.
Also in December 2014 FM gave evidence in a voir dire hearing in relation to the proceeding for Indictment C10170864C.1, which contained one charge of indecent assault of a different complainant, TD (the ‘TD indictment’). The proceedings for the TD indictment were also discontinued in October 2015.
The proceeding for Indictment C10170864D.1, which contained one charge of possession of child pornography (the ‘child pornography indictment’), was discontinued in February 2015.
The applicant now seeks leave to appeal against his conviction of the 17 charges the subject of the principal indictment. He does so without the assistance of counsel or other lawyers.
The applicant’s notice of application for leave to appeal against conviction states that the applicant seeks leave to appeal pursuant to s 274 of the Criminal Procedure Act 2009. That section has no operation in the present circumstances, because the applicant has already been refused leave to appeal by this Court. Rather, the applicant seeks a second appeal. Accordingly, we have treated his application as a notice of application for leave to appeal against conviction pursuant to s 326A of the Criminal Procedure Act, which provides for a second or subsequent appeal against conviction if the Court grants leave.
Pursuant to s 326C(1) of the Criminal Procedure Act, this Court may only grant leave to appeal under s 326A if we are satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. Section 326C(3)(a) provides that evidence will be ‘fresh’ if it was not adduced at the trial of the offence and it could not, even with the exercise of reasonable diligence, have been adduced at the trial. Section 326C(3)(b) provides that evidence will be ‘compelling’ if it is reliable, substantial and either highly probative in the context of the issues in dispute at the trial of the offence, or would have eliminated or substantially weakened the prosecution case if it had been presented at trial. In Van Beelen v The Queen, the High Court explained the meaning of some of these terms as follows:
The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding. The criterion of substantiality requires that the evidence is of real significance or importance with respect to the matter it is tendered to prove. Plainly enough, evidence may be reliable but it may not be relevantly ‘substantial’. Evidence that meets the criteria of reliability and substantiality will often meet the third criterion of being highly probative in the context of the issues in dispute at the trial, but this will not always be so.[21]
[21](2017) 262 CLR 565, 577 [28] (Bell, Gageler, Keane, Nettle and Edelman JJ); [2017] HCA 48 (citations omitted).
The Court must be satisfied that the fresh evidence has the qualities prescribed by s 326C(3) — it is not sufficient that it is reasonably arguable that the evidence has these qualities.[22] Furthermore, the onus is upon the applicant to satisfy the Court that the preconditions to the grant of leave are met.[23] An applicant is not permitted to re-argue grounds of appeal that have previously been determined by this Court, or to advance arguments that could have been, but were not, advanced during their trial. As this Court observed in Roberts v The Queen, the strict preconditions on a grant of leave in s 326C of the Criminal Procedure Act are designed ‘to preclude successive meritless applications’ for leave to appeal.[24]
[22]Roberts v The Queen (2020) 60 VR 431, 441 [44] (Osborn, T Forrest JJA and Taylor AJA); [2020] VSCA 58 (‘Roberts’).
[23]Roberts (2020) 60 VR 431, 441 [45] (Osborn, T Forrest JJA and Taylor AJA); [2020] VSCA 58.
[24]Roberts (2020) 60 VR 431, 441 [41] (Osborn, T Forrest JJA and Taylor AJA); [2020] VSCA 58.
The critical question in this case is whether the evidence upon which the applicant seeks to rely is fresh and, if it (or some of it) is fresh, whether it is compelling.
The applicant filed extensive material in support of his application for leave to appeal, including:
(a)a 215 page document, which includes his notice of application for leave to appeal and his written case;
(b)an unsworn affidavit in his name and dated 28 April 2023, filed in support of the application for leave to appeal, which is 318 pages long; and
(c)151 accompanying exhibits, which together come to approximately 3,250 pages.
As the respondent submitted, the applicant’s documents did not comply with this Court’s practice notes in relation to criminal appeals and second or subsequent appeals. The applicant’s notice of application for leave to appeal does not articulate clear grounds of appeal. Much of it is confusing and repetitive. Although the applicant contended that all of the evidence upon which he seeks to rely is fresh and compelling evidence, he did not clearly articulate why it ought to be so characterised.
The respondent submitted that the ‘overwhelming majority’ of the exhibits filed by the applicant are dated before July 2013, when the applicant’s trial occurred, and appeared to have either been in his possession at the time of his trial or capable of being adduced by him in the exercise of reasonable diligence. Thus such documents could not constitute ‘fresh evidence’ within the meaning of s 326C(3)(a). The respondent accepted that some of the applicant’s exhibits are dated after July 2013 and thus could plausibly be argued to be fresh evidence. The respondent, helpfully, prepared a schedule of that evidence to assist the Court.
The applicant also filed 10 applications under s 318 of the Criminal Procedure Act seeking to have various witnesses to attend and be examined before the Court. For reasons that are set out later, this Court refused those applications on the day of the hearing.
In addition, the applicant applied for bail. For reasons that are set out later, this Court refused that application on the day of the hearing.
We have reviewed the applicant’s application for leave to appeal, his exhibits and the other material he has filed and we have concluded that the great majority of it is not ‘fresh’, because it was in existence before the applicant’s trial and was available to him in the exercise of reasonable diligence. Further, such evidence that is properly characterised as fresh, because it came into existence after the applicant’s trial or was not available to him in the exercise of reasonable diligence, is not compelling in the sense set out in s 326C(3)(b) of the Criminal Procedure Act. The applicant’s application for leave to appeal must therefore be refused.
Summary of the applicant’s offending
The trial judge summarised the applicant’s offending in relation to the principal indictment in her sentencing remarks. The following summary is distilled from those remarks.
The victims of most of the offences were HM and AM, who were the daughter and son of FM. The third victim, of two of the offences, was TB, who was a female friend of HM. At the time of the charged acts, the applicant was aged between 44 and 50 years, HM was aged between four and 10 years, AM was aged between five and 11 years, and TB was aged between 10 and 11 years.
The offending occurred over 12 separate incidents that were alleged to have occurred between February 2004 and July 2010. The nature of each of the charged acts is, in summary, as follows:
(a)Charge 1 alleged that, on an occasion between 1 February 2004 and 31 October 2005, the applicant touched HM on what she described as her ‘boobs’ underneath her clothing. This constituted the offence of indecent act with a child under 16.
(b)Charge 2 alleged that, on an occasion between 1 January 2007 and 31 December 2007, the applicant sexually penetrated HM by introducing his tongue into HM’s vagina. This constituted the offence of incest.
(c)Charge 3 alleged that, on the same occasion as charge 2, the applicant touched HM’s breasts under her top. This constituted the offence of indecent act with a child under 16.
(d)Charge 4 alleged that, on an occasion between 1 January 2007 and 16 December 2007, the applicant made AM sexually penetrate his sister, HM, by introducing his penis into HM’s vagina. This constituted the offence of compelled rape.
(e)Charge 5 alleged that, on the same occasion as charge 4, the applicant sexually penetrated HM by introducing his penis into her mouth. This constituted the offence of incest.
(f)Charge 6 alleged that, on an occasion between 14 February 2008 and 31 May 2009, the applicant sexually penetrated HM by introducing his penis into her vagina. This constituted the offence of incest.
(g)Charge 7 alleged that, on the same occasion as charge 6, the applicant sexually penetrated HM by introducing his penis into her mouth. This constituted the offence of incest.
(h)Charge 8 alleged that, on an occasion between 14 February 2008 and 31 May 2009, the applicant sexually penetrated HM by introducing his penis into her mouth. This constituted the offence of incest.
(i)Charge 9 alleged that, on an occasion between 14 February 2008 and 24 May 2009, the applicant sexually penetrated AM by introducing his penis into AM’s mouth. This constituted the offence of incest.
(j)Charge 10 alleged that, on a different occasion between 14 February 2008 and 24 May 2009, the applicant sexually penetrated AM by introducing his penis into AM’s anus. This constituted the offence of incest.
(k)Charge 19 alleged that, on an occasion between 1 April 2009 and 31 August 2009, the applicant sexually penetrated HM by introducing his penis into her mouth. This constituted the offence of incest.
(l)Charge 20 alleged that, on the same occasion as charge 19, the applicant sexually penetrated HM by introducing his penis into her anus. This constituted the offence of incest.
(m)Charge 21 alleged that, on an occasion between 1 February 2010 and 30 June 2010, the applicant introduced his finger into HM’s vagina. This constituted the offence of rape.
(n)Charge 22 alleged that, on the same occasion as charge 21, the applicant raped HM in the presence of AM. This constituted the offence of indecent act with a child under 16.
(o)Charge 23 alleged that, on an occasion between 1 February 2010 and 30 June 2010, the applicant told HM to take off her pants and he looked at her vagina. This constituted the offence of indecent act with a child under 16.
(p)Charge 24 alleged that, on an occasion between 1 July 2010 and 31 July 2010, the applicant touched TB’s vagina on the outside of her pyjamas. This constituted the offence of indecent act with a child under 16.
(q)Charge 25 alleged that, on a different occasion between 1 July 2010 and 31 July 2010, the applicant put his hands down the front of TB’s t-shirt and touched her breasts. This constituted the offence of indecent act with a child under 16.
The applicant denied that any of the alleged offending occurred. The defence case was that the complainants lied about the alleged offending so that FM could regain custody of JV from the applicant.
It was an element of the incest charges concerning HM and AM (charges 2, 5–10, 19 and 20) that the applicant was FM’s de facto spouse at the time of the offending. The prosecution case was that the applicant was FM’s de facto spouse at all relevant times during which the incest offending was alleged to have occurred. The applicant contended at trial, and on his first appeal, that he was not in a de facto relationship with FM at all; rather, he said that she was his carer.
The judge’s no case ruling in relation to charges 11, 12, 14, 16 and 17 (all charges of incest) was based on the judge’s conclusion that there was no evidence on which a reasonable jury, properly instructed, could be satisfied beyond reasonable doubt of the accused’s guilt of those charges because the evidence demonstrated that the relevant events occurred, if they occurred, after the applicant and FM had separated.
By reason of their guilty verdict on the remaining incest offences (charges 2, 5–10, 19 and 20), the jury must have been satisfied that FM was in a de facto relationship with the applicant at the relevant times. The remaining charges on the indictment were not charges of incest, thus if the applicant was not in a de facto relationship with FM at the time those offences were said to have occurred, that would be no obstacle to a conviction.
The first application for leave to appeal
By his first application for leave to appeal, the applicant made the following arguments:
(a)First, that the verdicts on charges 2, 5, 6, 7, 8, 9, 10, 19 and 20 (charges of incest) were unreasonable as there was insufficient evidence to establish that the applicant was FM’s de facto partner at the time of the offending.[25] Relatedly, the applicant contended that the judge had erred in the directions she had given the jury on this issue.[26]
(b)Secondly, that the trial judge should have excluded evidence given by FR, a friend of HM and AM, in relation to uncharged acts that he had observed.[27] FR’s evidence was that he had seen HM rub her hand up and down on the applicant’s penis, and that he had seen the applicant touching TB on her breasts. The judge ruled that evidence of the first incident was admissible to demonstrate that the applicant had a sexual interest in HM, and in light of that ruling the applicant conceded at trial that evidence of the second incident was admissible to demonstrate that the applicant had a sexual interest in TB. The applicant contended on appeal that FR’s evidence ought to have been excluded under s 101 of the Evidence Act 2008.
(c)Thirdly, the applicant contended that the judge erred in admitting certain evidence given by HM in her VARE, said to be responses to a leading question.[28]
(d)Fourthly, the applicant contended that a substantial miscarriage of justice occurred by reason of the judge allowing an amendment of the indictment in relation to charges 4 and 13.[29] Those charges alleged that the applicant compelled AM to penetrate HM, and initially identified HM as the victim of the offences. The amendment sought to identify AM as the victim of the offences, consistently with s 38 of the Crimes Act.
(e)Fifthly, the applicant contended that the judge erred by refusing to sever the charges involving TB from those involving AM and HM.[30] This ground was abandoned at the hearing of the first application for leave to appeal.
(f)Sixthly, the applicant contended that, after the judge directed that acquittals be entered on certain charges, the judge should have discharged the jury on the remaining charges, notwithstanding his counsel’s opposition to that course at trial.[31]
[25]This was proposed ground 2 of the first application for leave to appeal. Proposed ground 1 of the first application for leave to appeal alleged that the judge erred in rejecting a no case submission in relation to these charges. That ground was abandoned at the hearing of the first application for leave to appeal.
[26]This was proposed ground 3 of the first application for leave to appeal.
[27]This was proposed ground 4 of the first application for leave to appeal.
[28]This was proposed ground 5 of the first application for leave to appeal.
[29]This was proposed ground 6 of the first application for leave to appeal. This ground was also amended the day before the hearing to allege in addition that the applicant suffered a substantial miscarriage of justice as a result of the trial judge reversing her order to stay Indictment C10170864 so as to permit the respondent to amend the principal indictment.
[30]This was proposed ground 8 of the first application for leave to appeal.
[31]This was proposed ground 9 of the first application for leave to appeal.
This Court refused leave to appeal on all grounds. As will become apparent, the applicant’s application for leave to appeal a second time traverses some of the matters dealt with in his first appeal.
The applicant’s second application for leave to appeal
The applicant’s second application for leave to appeal was contained in a document that also included his written case. The document contained, under the heading ‘Grounds’, the following statements:
The Applicant humbly apologises to the Honourable Judges and the Court of Appeal for the Volume of the material supplied but this is the only opportunity the Applicant has been given to express and have any input in any matters pertaining to the Charges and Convictions to showcase his evidence and facts as to his innocence
The only material that was used in the Applicants trial and marked as EXHIBITS were EXHIBIT JPV 127, 128, 129, 130 and 131 as indicated and shown in the Applicants EXHIBITS
That the evidence submitted was never used in the Applicants trial and should therefore be deemed as ‘Fresh Evidence’
…
Given the opportunity to speak, the Applicant in a very short time, can prove his innocence with just the Medical evidence as stated in EXHIBIT 9 (White Folder) and Photographic EXHIBITS JPV 91, 92, 93, 94, 95, 96, 97
In what appears to be a new section of the document, but which lacks a heading, the applicant contended that an accused person is permitted to testify on oath, and that anyone present at the hearing of a proceeding may be compelled to give evidence, even though they have not been subpoenaed. He then alleged as follows:
The Applicant was denied his Civil rights to not only give evidence, but to have Witnesses or produce Documents to prove beyond doubt his innocence …
There then followed a section of the document headed ‘Written Case’. The Written Case occupied some 210 pages (going well beyond the permitted 10 pages prescribed for applications for leave to appeal). The Written Case contained a heading ‘Appealing on the grounds of fresh evidence’. The Written Case then set out what appeared to be extracts from a policy of the Director of Public Prosecutions concerning ‘post‑conviction fresh evidence, disclosure and the avoidance of miscarriage of justice’ dated 8 July 2010.
Next, the applicant set out the trial judge’s ruling on 25 July 2013 concerning charges 11, 12, 14, 16 and 17 on the principal indictment, which were charges of incest. In this ruling the judge found there was no case to answer on those charges because the evidence was consistent with the defence submission that the events alleged to have constituted those charges occurred, if they occurred, after the applicant had separated from FM (the children’s mother). Subsequently, the judge also refused a prosecution application to discharge the jury, which was opposed by the defence.
In summary, the applicant made the following arguments concerning his trial and the convictions that resulted.
First, he contended that because the judge had ‘ruled out’ charges 11, 12, 13, 14, 15, 16, 17 and 18, her Honour should also have ‘ruled out’ all remaining charges because they were ‘alleged to have happened at the same time as the others’ and if the applicant was not in a de-facto relationship at the time, ‘it stands to reason that the Applicant was not in a De-facto relationship at all’. This contention did not rely upon any fresh evidence. Thus this issue cannot provide the foundation for a second appeal.
Furthermore, as noted above, various charges on the indictment were not charges of incest (charges 1, 3, 4 and 21–5). Thus even if the applicant was not in a de facto relationship with FM at the time those offences were said to have occurred, that would be no obstacle to a conviction for those charges.
Secondly, the applicant contended that evidence of his homosexuality and his impotence had been wrongly excluded from the trial. The applicant relied heavily on this matter in support of his application for leave to appeal, in both his written material and in his submissions at the hearing.
In his written case the applicant asserted that the trial judge ‘ruled out all mention’ of his erectile dysfunction issues and his homosexuality at the trial. That assertion was incorrect. Rather, the applicant’s counsel expressly disavowed any reliance on the applicant’s erectile dysfunction issues and his stated homosexuality as part of his defence, and sought to prevent the prosecution from adducing evidence about those matters. The issue arose in the following way.
(a)It appears that, when the applicant was interviewed by police on 10 August 2010, he told police that he was impotent and homosexual.
(b)At trial, his counsel sought to have those statements excluded from the record of the interview that was played to the jury.
(c)In contrast, the prosecution sought to have those statements admitted on the basis that they were lies, which were reasonably capable of being viewed as evidence of incriminating conduct.
(d)In response, defence counsel (relevantly) noted that there was ‘medical material’ that the applicant had provided to investigators before he was interviewed ‘confirming a diagnosis of erectile dysfunction’.
(e)On 15 July 2013, the trial judge ruled, consistently with the defence submission, that the prosecution was not permitted to rely on the relevant answers from the interview as incriminating conduct evidence. There was nothing to prevent the applicant from adducing this evidence. But his counsel chose not to do so.
In relation to his homosexuality and his erectile dysfunction, the applicant relied upon the following evidence:
(a)evidence given by FM (no date was given for this evidence, nor were the circumstances in which it was given identified; it appeared to be an extract from FM’s evidence at his trial);
(b)a handwritten statement made by FM dated 11 March 2009;
(c)FM’s police statement dated 25 October 2011;
(d)a handwritten statement made by a witness, LB, dated 16 November 2010 and a further handwritten statement by LB that was undated — LB was not called to give evidence at the trial;
(e)what were said to be various extracts from the trial transcript;
(f)what were said to be various extracts from the committal transcript;
(g)what were said to be various extracts from the transcript from the trial of the JG indictment in December 2014; and
(h)medical records relating to his alleged impotence.
With two exceptions, this evidence was all available to the applicant prior to his trial. It was thus not fresh evidence within the meaning of s 326A.
The first exception is the material said to have been from the transcript of the trial of the JG indictment. At this point in his written case, the applicant pointed to material that recorded:
(a)exchanges between the prosecutor and the judge in that matter, in particular about the contents of the applicant’s record of interview in relation to JG, in which he said ‘I’m gay, you actually knew that from Frankston’; and
(b)a reference by the judge in the JG trial to earlier statements made by the judge in the trial on the principal indictment to the applicant’s statements in his record of interview that he was homosexual and suffered from erectile dysfunction.
These exchanges and statements occurred after the applicant’s trial, thus they might appear to be ‘fresh’ evidence. However, they concerned a matter that was (if true) well known to the applicant himself, evidence of which was plainly available to him at the time of his trial. Furthermore, the exchanges between the prosecutor and the judge, and the judge’s reference to the trial judge’s statements, are not themselves evidence of the applicant’s homosexuality. Thus they are not fresh evidence. In any event, this material is not ‘compelling’ within the meaning of s 326C of the Criminal Procedure Act.
The second exception concerns three medical reports said to establish that the applicant suffered from erectile dysfunction issues at the time of his offending. In support of this aspect of his case, the applicant relied upon many medical records. Almost all of them pre-dated his July 2013 trial and were thus available to him at trial. The applicant’s counsel made a forensic decision not to rely on the records, which were ultimately not admitted into evidence. As the respondent correctly submitted, the mere fact that evidence was not used in a trial does not now make it fresh. These medical records are not ‘fresh evidence’ within the meaning of s 326C of the Criminal Procedure Act.
There were three medical reports upon which the applicant sought to rely that post‑dated his trial. These are potentially capable of being fresh evidence and are dealt with later in these reasons.
Thirdly, the applicant contended that his counsel on his first appeal had ‘failed to disclose’ various matters to the Court and that the Court was ‘misdirected’ by the grounds on which counsel had relied. In this regard, the applicant submitted as follows (emphasis in original):
The Applicant wishes to challenge/dispute the issues surrounding the Decision by the Honourable Supreme Court of Appeal on their ruling in respect to the Grounds pertaining to a De-facto relationship. The Applicant does not believe that the Honourable Court took into account of Her honour Judge Patrick's ruling at trial Transcript page 839, I to 31 and page 840, from 1 to 21.
Her Honour Judge Patrick stated on page 839, lines 21 to 23, ‘On that basis, there is no evidence to support a conclusion that they were in a de facto relationship, and therefore the charge of incest cannot succeed’
As these Dismissed Charges relate to offences that are alleged to of occurred whilst living at Frankston and Welshpool therefore any other Charges relating to have of occurred at either of these addresses have no merit as these alleged allegations were of the same type of nature that the applicant has been found Guilty
The difficulty for the applicant in relation to this complaint is that the Court of Appeal was well aware that the judge had directed an acquittal in relation to five of the charges of incest (charges 11, 12, 14, 16 and 17), on the basis that there was no evidence that the applicant had been in a de facto relationship with the complainants’ mother at the time of those charged acts.[32] The Court said as follows:
The applicant’s contention was that, at the times of the alleged offences, [FM] was simply his carer, not his ‘de facto spouse’. For reasons which follow, we would reject that contention. In our view, it was open to the jury to conclude that, at the time the offending occurred, the applicant and [FM] were living together ‘as if they were married’. As will appear, the evidence of the parental relationship which existed between the applicant and the children is an important part of the analysis which supports this conclusion.[33]
[32]First Appeal Reasons, 523 [105].
[33]First Appeal Reasons, 499 [6]. The Court engaged in a detailed consideration of what a de facto relationship is, as a matter of law, as well as consideration of the evidence in the case that permitted the jury to conclude that the applicant and FM had been in a de facto relationship: First Appeal Reasons, 501–8 [12]–[44].
Thus the Court considered this ground of appeal and dismissed it. The applicant’s counsel’s conduct of the first appeal does not involve fresh evidence. Furthermore, this material is not ‘compelling’.
Fourthly, the applicant contended that he was wrongly denied the right to give evidence, including evidence that he was never in a de facto relationship with FM. Referring to this Court’s decision in the First Appeal, he submitted as follows (emphasis in original):
Whilst the Applicant can only express to the Honourable Court that their findings had merit as they were made only with the material supplied to them by the Applicants Barrister …
This is what happens when an accused person is denied the right to not only give evidence but to also supply evidence and witnesses that would prove the person his innocent, as that was what happened in both of the Applicants Trial proceedings.
By denying the Applicant that right to give evidence that the Applicant was or never been in any sort of DE-FACTO relationship with [FM] by supplying to the Honourable Court that during the that the Allegations are alleged to have taken place that the Applicant was found Guilty of are the facts that [FM]
The difficulty with this ground is that there is no evidence that the applicant was ‘denied the right to give evidence’. Rather, it appears that he did not give evidence at his trial, and thus did not give evidence of the kind he now wishes to rely upon. Perhaps this was on the advice of his counsel. Perhaps it was as a consequence of his counsel’s conduct of the trial. As in so many cases, the decision whether an accused should give evidence in the trial is essentially a forensic decision made in the circumstances of that particular trial. But nonetheless, he was not, as a matter of law, denied to the right to give evidence.
Relatedly, the applicant asserted that discussions between the judge, the prosecutor and his counsel occurred in his absence. There is no evidence to support this assertion. Thus it does not turn on fresh evidence.
In any event, these aspects of the applicant’s case do not involve fresh evidence. Furthermore, we do not consider this material to be compelling.
Fifthly, the applicant complained that during jury selection he was ‘not allowed to make eye contact with the jury being selected’. He claimed that he was told to ‘stare down at the handrail and not look at any jury member in the face’. It appears that these instructions emanated from the applicant’s counsel, rather than from the trial judge.
The applicant also claimed that a friend of his had said that three members of the jury were discussing the events of each day of the trial on Facebook, and that he told his counsel this, but that his counsel told him the jurors were entitled to do this so long as they did not discuss the case with any other party. The applicant said that he ‘believes that his friend still has this information on his computer’, but the applicant did not put any such information before this Court.
There is no evidence to support these aspects of the applicant’s case,[34] let alone any fresh evidence. Furthermore, even if the applicant was told by his lawyers not to stare at (potential) jury members, such evidence would be far from compelling.
[34]We do not regard the applicant’s assertions in his written case and his unsworn affidavit to be evidence.
Sixthly, the applicant contended that the trial judge made various errors in her reasons for sentence. Assuming, for the purposes of argument, that the judge made the errors alleged, these could have had no effect on the trial, which had already concluded. Nor do the judge’s reasons for sentence constitute ‘fresh’ evidence within the meaning of s 326C of the Criminal Procedure Act. Further, the errors the applicant alleges that the judge made are not ‘compelling’ for the purposes of s 326A.
Seventhly, the applicant relied upon the evidence given by FM in other criminal proceedings against the applicant on 5 December 2014 and on 16 December 2014. FM’s evidence on those occasions was given after the applicant’s trial. It is thus properly regarded as ‘fresh evidence’ for the purposes of s 326A. We will consider later in these reasons whether the evidence given by FM on those occasions is ‘compelling’ for the purposes of s 326A.
Eighthly, the applicant said that he was charged with an offence (charge 1) which was alleged to have occurred during a timeframe when he did not know the complainants. Charge 1 was alleged to have occurred between 1 February 2004 and 31 October 2005. The applicant contended that FM did not move in with applicant until 27 February 2005 and did not regain custody of her children from her ex-husband, DF, until 25 March 2005. He said he did not meet HM and AM until that date.
The immediate point to note about this aspect of the applicant’s case is that it does not turn on fresh evidence. The timing of FM moving in with the applicant was in issue in the trial and the evidence upon which the applicant seeks to rely was available to him at the time of the trial.
Furthermore, even if the evidence was fresh and was accepted as accurate, this would not require the conclusion that the verdict on charge 1 was not open to the jury. Charge 1 alleged offending between 1 February 2004 and 31 October 2005. It would have been open to the jury to conclude that the offending the subject of charge 1 occurred on a date between 25 March 2005 and 31 October 2005.
Ninthly, the applicant said that no complaint was made about the alleged offending until 27 July 2010 — which was the same day the applicant informed FM he was no longer going to support her financially. The delay in complaint is not fresh evidence and evidence concerning whether and when the applicant told FM that he was no longer going to support her financially was available to the applicant at his trial.
Tenthly, the applicant said that a medical report obtained on 7 May 2007 showed that HM had constipation, and that this report ‘clearly showed’ that HM had ‘not been sexually abuse[d]’, but this report was not put into evidence by his counsel.
Similarly, the applicant said that a report produced by a forensic paediatrician stated that ‘Examination findings of the perianal area [of AM] were normal’. The applicant contended that there was no medical evidence to support any claim of anal penetration or to support any claim of oral sex in relation to AM.
Plainly these medical reports are not fresh evidence. The reports were available to the applicant at the time of the trial. Furthermore, these medical reports are not compelling. The reports do not demonstrate that the complainants were not the subject of any sexual abuse over the years in issue in the proceeding.
Eleventhly, the applicant said that the police seized around 3,000 photographs and negatives from the applicant’s home and that those photos and negatives were never returned to him. He submitted that the jury had not been made aware of these photographs. He submitted that if the photographs had been available to the court and the jury, that ‘would [have] resulted in different verdicts’. The applicant emphasised this aspect of his case in oral argument. He also relied on certain photographs that he had provided as part of his materials, which he said demonstrated that there was no bed in the house at the time certain offences were said to have occurred.
This evidence is not fresh evidence. Some of the photographs were in the applicant’s possession and could have been adduced at trial. Those photographs that were seized by police (or copies of them) could, with reasonable diligence, have been obtained from the police before trial. Furthermore, the photographs that were presented to the Court were not compelling within the meaning of s 326C. As for the photographs that have not been returned to the applicant, they were not before us. It is thus not demonstrated that those photographs are compelling. The applicant submitted that those photographs would show that a change table was not erected and that the lounge room was set up like a bedroom. Assuming, for the purposes of the argument, that the photographs showed these details, they are peripheral and would not be sufficient to render that evidence compelling.
Twelfthly, the applicant contended that the trial judge erred by severing the charges involving JG and TD, and erred by not severing the charges involving TB. These aspects of the applicant’s case do not turn on fresh evidence and cannot engage the operation of s 326C.
Thirteenthly, the applicant said that FM and AM gave evidence that events said to have occurred at Frankston resulted in HM bleeding extensively. He contends that all the bedrooms were carpeted and that neither FM (who vacuumed) and LB (who assisted with the vacuuming on occasion) ever noticed any blood stains on the carpet.
To the extent that this turns on police statements and the transcript from the trial, it is plainly not fresh evidence. To the extent it turns on the proposition that neither FM or LB observed any blood stains on the carpet, the applicant did not point to evidence to that effect; but even had he done so, such evidence would not be fresh evidence. Nor would it be compelling.
Fourteenthly, the applicant said that various relevant witnesses were not called at trial. This complaint does not involve fresh evidence.
Fifteenthly, the applicant disputed the evidence of FR, the friend of HM and AM who gave evidence that he had seen HM rubbing the applicant’s penis and the applicant touching TB’s breasts. This aspect of the applicant’s case does not involve fresh evidence. Furthermore, a ground of appeal based on the proposition that FR’s evidence ought to have been excluded was rejected by this Court in the applicant’s first appeal.
Sixteenthly, the applicant made various allegations about his barristers that impliedly asserted incompetence of counsel as a ground of appeal. None of these allegations were supported by evidence, let alone fresh evidence.
Finally, the applicant contended that there were various improbabilities or inconsistencies in the evidence in relation to many of the charges. These contentions are advanced throughout his written case. In many instances it is not possible to link the contentions to a particular charge. It is necessary only to give a few examples:
(a)in relation to charge 1, he said the offending was improbable because other people were present in the house at the time;
(b)in relation to charges 2 and 3, he said that the offending was improbable and that there was evidence (that was not put before jury) that FM was not working at that time and was at home;
(c)in relation to charge 4, he said that contrary to the indictment, witnesses did not say the incident occurred at Frankston they said it occurred at Port Welshpool.
More generally, a significant part of the applicant’s written case was directed to arguments about why he should not have been found guilty of any of the 17 charges, based on the evidence that was adduced at trial and the evidence of other persons who were available to give evidence but were not called.
The applicant’s arguments, and his attempts to identify improbabilities and inconsistencies in the evidence given at trial and in police statements, do not turn on fresh evidence. Rather, they turn on the evidence given at trial and the materials available to the applicant at that time. These aspects of the applicant’s case thus do not engage this Court’s power to grant leave under s 326C of the Criminal Procedure Act.
The evidence plausibly arguable to be ‘fresh evidence’
As noted above, the evidence given by FM in the JG trial and in the voir dire in the TD trial is fresh evidence. Furthermore, the respondent accepted that some other parts of the material upon which the applicant sought to rely is, or is plausibly arguable to be, ‘fresh evidence’ within the meaning of s 326C(3)(a) of the Criminal Procedure Act. It is thus appropriate to consider this material in greater detail. The respondent grouped this material by category, and we have adopted the same groupings.
FM’s evidence on 5 December 2014 in the trial relating to the JG indictment
On 5 December 2014 (after the applicant’s trial for the present offending had concluded) FM gave evidence in the trial of the charges on the JG indictment.[35] It appears from the material the applicant filed in this Court that he relies on the following passage in FM’s evidence on 5 December 2014:[36]
[Prosecution counsel]: Did you subsequently get to know [the applicant] and then begin a relationship with him?
FM: Yeah, we did. It started initially that I had — had nowhere to live and he rented me a room and, from there, sort of went to a relationship from that.
[35]This was Exhibit 107 to the applicant’s unsworn affidavit. For convenience, we will simply refer to Exhibits from this point on.
[36]Exhibit 107, p. 232, lines 24–28.
This evidence did not identify a date on which FM moved in with the applicant, or where they were living when she first moved in. However, immediately prior to the above exchange, FM gave evidence that she was living ‘just out of’ Shepparton at the time she met the applicant, which was ‘at the end of 2003’.[37]
[37]Exhibit 107, p. 232, lines 18–23.
FM was later asked whether, after she had met the applicant, she had moved ‘and lived with him at Frankston North’. She agreed with that, and said ‘we moved down there in October 2005, it was the day before [HM’s] birthday’.[38] She also gave evidence that she had been registered with Centrelink as the applicant’s carer in 2007 and was not working at that time, because she was pregnant.[39]
[38]Exhibit 107, p. 233, lines 7–10.
[39]Exhibit 107, p. 252, lines 16–20.
The applicant contended that FM’s evidence on 5 December 2014 (together with other evidence) ‘completely exonerates’ him of the offending in the present case. He appeared to contend that FM’s evidence demonstrates that he and FM were not in a de facto relationship at the time of his offending. If that were so, he ought not to have been convicted of the eight incest charges.
As already noted, the respondent accepted that FM’s evidence on 5 December 2014 is ‘fresh’ within the meaning of s 326C(3)(a) of the Criminal Procedure Act. That concession was properly made, given that FM’s evidence in the trial of the charges on the JG indictment occurred after the applicant’s trial on the principal indictment. However, the respondent contended that this evidence could not be regarded as compelling. For the reasons that follow, we agree.
FM’s evidence in the trial on the JG indictment was broadly consistent with the evidence that she had given at the applicant’s trial on the principal indictment about her living arrangements with the applicant at various times. In particular:
(a)At trial FM was cross-examined about her relationship with the applicant. It was suggested to her that she was the applicant’s carer, and that she had reported to Centrelink that she was single at the times during which she lived with the applicant. She accepted both those propositions. However, she also gave evidence that she and the applicant started living together in Shepparton in 2004 (around three or four months after they met), that in October 2005 they moved to Frankston North together, that they had been in a sexual relationship and that they had a child together. That evidence was consistent with her relationship with the applicant being that of a de facto spouse at least for part of the time during which they lived together. More generally, the question of whether the relationship was a de facto relationship was a question for the jury, to be assessed on the whole of the evidence. It did not turn on FM’s own characterisation of the relationship.
(b)On 5 December 2014, in the trial on the JG indictment, FM gave evidence that she had met the applicant in ‘early 2004’. FM said that although she was not initially in a de facto relationship with the applicant when she first moved into his house, they later developed a de facto relationship[40] and had a child together in December 2007.[41] FM also gave evidence that there was a period in 2006, when she and the applicant were having problems, when she moved to Western Australia.[42]
[40]Exhibit 107, p. 232.
[41]Exhibit 107, p. 236.
[42]Exhibit 107, p. 251.
There were two differences between FM’s evidence at trial and her evidence at the trial of the JG indictment.
(a)First, there was a difference in FM’s evidence about when she first met the applicant. At trial she said she met him in early 2004, whereas in her evidence in the trial of the JG indictment she said she met the applicant in late 2003.
(b)There was also a difference about whether FM and the applicant had commenced their relationship before she moved in with him, or afterwards. At trial FM said that she moved in with the applicant after the relationship had commenced; whereas at the trial of the JG indictment, FM said that she had moved in with the applicant first, and then the relationship had developed.
Neither of these differences is compelling.
In relation to the first difference, none of the charges turned on precise time at which FM met the applicant. The earliest charge (charge 1) was a charge of committing an indecent act with a child under 16. Charge 1 identified a date range commencing on 1 February 2004 and ending on 31 October 2005. It would have been open to the jury to conclude that the offending occurred within this date range, at a time after FM had met the applicant. In order to succeed on charge 1 it was not necessary for the prosecution to prove that the applicant and FM were in a de facto relationship.
In relation to the second difference, accepting that FM was not in a de facto relationship with the applicant at the time she moved into his house (at some time in 2004, probably around mid-2004), her evidence was nonetheless that a sexual relationship commenced at a later point in time. The first incest charge related to conduct alleged to have occurred between January 2007 and December 2007. There was nothing in FM’s evidence in relation to the JG indictment that was inconsistent with the applicant and FM being in a de facto relationship during that period. That is particularly so given that they had a child together who was born in December 2007.
We also note, for completeness, that FM gave evidence on 5 December 2014 that she had moved to Western Australia in January 2006 and returned in May 2006, after which she again lived with the applicant. This evidence, too, is consistent with the evidence she gave at trial. The question of the effect of the separation was considered by this Court in the applicant’s first appeal.[43]
[43]First Appeal Reasons, 501–2 [14]–[16].
Finally, the fact that FM’s evidence on 5 December 2014 was different from her evidence at trial in these two respects could, to some extent, cast doubt upon her credibility or reliability. However, these differences were relatively minor and can be understood as reflecting the difficulties in accurately remembering the precise dates on which events occurred, many years after the events in question. They do not require a conclusion that FM was deliberately untruthful. We do not consider any impact on FM’s credibility to be compelling.
Thus, although FM’s evidence on 5 December 2014 is fresh evidence, it is not compelling. That is, it is not ‘substantial’, it was not highly probative in the context of the issues in dispute at the trial and nor would it have eliminated or substantially weakened the prosecution case if it had been presented at trial.
FM’s evidence during the voir dire hearing on 16 December 2014 in relation to the TD indictment
On 16 December 2014 FM gave evidence in a voir dire in the trial of the charges on the TD indictment.[44] The applicant again contended that her evidence in that voir dire ‘completely exonerates him’. He did not explain how it does so.
[44]Exhibit 24.
The first passage from the voir dire on which he relied is as follows:
There was a point at which he collected the children for an access visit and did not return them? - - - Yes, that's right.
Can you recall roughly when that was? - - - Yeah it was, um, September Holidays. End of September holidays 2004. It must have been because he had [HM] for her birthday.
It is apparent from the context of this evidence that the person who collected the children for an access visit was FM’s former partner, DF, who was HM’s and AM’s biological father.
The applicant did not articulate how this evidence is inconsistent with FM’s evidence at trial, or how it exonerates him. Rather, he appeared to contend that it demonstrates that the judge erred in her sentencing reasons when she described FM as living with her children from September 2004 to October 2005. However, any error in the judge’s sentencing reasons is irrelevant to whether his conviction ought to be overturned.
Furthermore, the applicant may seek to rely on FM’s evidence that DF had custody of HM and AM between late September 2004 and 23 February 2005 (the day it appears the children were returned to FM) to argue that he could not be guilty of charge 1.[45] However, this aspect of FM’s evidence was consistent with her evidence at trial about DF’s custody of AM and HM. Furthermore, even accepting that charge 1 could not have occurred before 23 February 2005, that does not require the conclusion that a verdict of guilty on charge 1 was not open to the jury, because that charge was alleged to have occurred between 1 February 2004 and 31 October 2005. It was thus open to the jury to convict if they were satisfied that it occurred between 23 February 2005 and 31 October 2005. Thus this evidence is not compelling.
[45]As the respondent pointed out, the only charge on the principal indictment that related (in part) to the period between September 2004 and 23 February 2005 was charge 1.
The second passage on which the applicant relied is as follows (emphasis in applicant’s submissions):
That would have been in 2006? - - - 2005 — 2000 — yeah, 2006 when we moved to Frankston. 2005 we moved to Frankston. Yeah, 2006 I think it was when [DF] got the charges ‘cause they did that one holidays and I think they did one more after that, um, and [the applicant] and I stopped taking them until the court was over. Um, yeah, sort of pending his outcome, I guess. Urn, and [HM] had come home with red marks and things where she shouldn’t, so yeah, that pretty much canned access for him, considering the charges he had against him.
FM had not previously given evidence about HM coming home with red marks and that resulting in DF losing access to his children.
The manner in which the applicant relied upon this passage was not clear from his written case. However, the respondent, quite properly, provided an explanation of the possible relevance of this passage. At trial, the defence case was that FM had arranged for the complainants to lie in the allegations that they made against the applicant, so that she could regain access to JV. FM was cross-examined at some length about having gained custody of HM and AM because DF had been charged with alleged sexual offending against a different child. In her closing address, defence counsel submitted that FM’s earlier experience of gaining custody of her children from DF had armed her with the knowledge that allegations of sexual abuse against a parent could be successfully used against them to gain custody in a dispute with the other parent. Defence counsel argued that FM had used this knowledge to influence the complainants to make false allegations against the applicant.
It may be accepted that FM’s evidence that HM had red marks when she returned from a visit with DF was relevant to the applicant’s defence. However, in light of the matters canvassed at the trial, this evidence would not, in our opinion, have added any real weight to the applicant’s argument at trial concerning FM’s experience of gaining custody of her children from DF. The evidence is not substantial, nor would it have eliminated or substantially weakened the prosecution case against the applicant.
Next, the applicant referred to FM’s evidence on the voir dire that TD had previously made allegations of sexual assault against DF.[46] This evidence has no relevance to the trial of the charges on the principal indictment, because those charges did not concern any allegations of sexual abuse against TD.[47] It is thus not compelling.
[46]Exhibit 24, pp 6–7.
[47]TD, it may be recalled, was the subject of charges on a separate indictment; those charges were later discontinued.
We have read FM’s evidence on the voir dire on 16 December 2014. Ultimately, we accept the respondent’s submission that this material, although it contains some fresh evidence, is not compelling.
Victim impact statements of FM and HM
FM and HM both produced victim impact statements for the purposes of sentencing.[48] In their statements, FM and HM describe the impact that the applicant’s offending had on them. There is nothing in either statement that undermines the evidence that FM and HM gave during the applicant’s trial.
[48]Exhibits 114 and 115.
The applicant did not explain how the victim impact statements are relevant to his conviction.
The respondent accepted that the victim impact statements constituted fresh evidence, because they were not prepared until after the applicant’s trial. But the respondent contended that the statements are not compelling. We accept that submission.
Handwritten letter and VIS of KB
One of the witnesses at the applicant’s trial was KB, who gave complaint evidence in relation to AM. The applicant sought to rely upon a handwritten letter said to have been written by KB to the applicant while he was in prison, and a copy of KB’s victim impact statement.[49]
[49]Parts of Exhibit 91.
It is unclear how the applicant said these documents are relevant to his convictions. It may be accepted that the documents appear to be inconsistent with one another, because the letter professes great affection for the applicant and appears to regard him as wrongly convicted, whereas the victim impact statement states that KB is ‘disgusted’ knowing that the applicant has committed ‘heinous crimes’ against children. But that seems simply to reflect a changed view on the part of KB, following the applicant’s conviction for the offending.
The respondent did not concede that the handwritten letter is reliable for the purposes of s 326C(3)(b)(i) of the Criminal Procedure Act. The respondent submitted that it is not clear, from the face of the document, when the letter was written, or if the different pages that have been produced by the applicant formed part of the same letter. The respondent further submitted that, even if the document is a letter that was prepared by KB after the applicant’s trial, there is nothing contained in it which could satisfy the meaning of ‘compelling evidence’ in s 326C(3)(b) of the Criminal Procedure Act.
In relation to the victim impact statement, the respondent contended that there is nothing in KB’s victim impact statement that is highly probative to the issues in dispute at the applicant’s trial and that the contents of the victim impact statement would not have had any effect on the strength of the prosecution case at trial.
Having reviewed this material, we have concluded that it is not compelling within the meaning of s 326C of the Criminal Procedure Act. Relevantly, KB did not retract her evidence that AM made a complaint to her about abuse by the applicant.
Evidence relating to the applicant’s physical and mental health
The applicant sought to rely on a variety of evidence relating to his physical and mental health that post-dates the trial and is thus, arguably, fresh evidence. This evidence is as follows:
(a)an Independent Health Assessment Report of Dr Ebrahim Hosseini dated 28 April 2014 (the ‘2014 Hosseini report’);[50]
(b)diabetic monitoring results in relation to the applicant from testing conducted by Australian Clinical Labs on 20 September 2013, 6 December 2013, 21 January 2014, and 14 December 2015;[51] and
(c)a psychological report of Jeffrey Cummins dated 24 February 2014 (the ‘2014 Cummins report’).[52]
[50]Part of Exhibit 9.
[51]Part of Exhibit 32.
[52]Exhibit 123.
In both his written and oral submissions the applicant placed significant reliance on the 2014 Hosseini report in support of his contention that he could not have committed the offending due to his erectile dysfunction issues. In his report, Dr Hosseini notes that he had reviewed the applicant’s medical records, and that ‘[i]mpotence [has] been a diagnosis at least from 08/10/2004 and has been treated with Viagra on different dates’.[53]
[53]Exhibit 123, p. 147.
The applicant contended that this report was fresh evidence because it was written after his trial. Furthermore, he submitted, if the Hosseini report is fresh evidence, then all the other medical material upon which he sought to rely in relation to his erectile dysfunction is also properly treated as fresh evidence.
The respondent accepted that the 2014 Hosseini report is arguably fresh evidence because it was produced in 2014 and so was not available to the applicant at the time of his trial. However, the respondent contended that ‘Dr Hosseini’s evidence, as contained in that report, is not fresh evidence’. That is because the 2014 Hosseini Report was based on medical records which were available to the applicant at the time of his trial. We accept that submission.
The applicant was plainly aware of his erectile dysfunction at the time of his trial and his counsel made a forensic decision not to rely on that evidence for the purposes of the defence case. Given the other factual material in evidence at the trial, we consider that such a forensic decision was open to counsel in the proper conduct of the case. In those circumstances, it is not open to the applicant to now argue that evidence of his erectile dysfunction is ‘fresh’ within the meaning of s 326C, even where the particular report post-dates his trial. Indeed, as the applicant stated in his application for bail, Dr Hosseini was willing and available to give evidence in the applicant’s trial. However, the applicant’s trial counsel determined that Dr Hosseini was not required to give evidence. In short, evidence that was available at trial is not rendered fresh by having the witness incorporate that evidence into a document prepared after trial.
We also accept the respondent’s submission that, even if the 2014 Hosseini report is properly characterised as fresh evidence, it is not compelling. The evidence is to the effect that the applicant suffered from erectile dysfunction issues at the time of the offending. However, it does not establish that he was incapable of committing the charged acts. For example, Dr Hosseini observed that the applicant was treated with Viagra. There was also evidence that the applicant had sexual intercourse with FM and they were able to conceive a child. Thus evidence about the applicant’s erectile dysfunction is not highly probative of whether he committed the alleged offending, nor would the evidence have eliminated or substantially weakened the prosecution case if it had been presented at the applicant’s trial.
For these reasons, we consider that the 2014 Hosseini report was neither fresh nor compelling.
The applicant’s post-trial diabetic monitoring results, while fresh, are not ‘compelling’ evidence. It is unclear how the applicant said these results relate to his conviction. It does not appear to us that the monitoring results would have been relevant to any issue in the trial.
The 2014 Cummins report again addresses the applicant’s erectile dysfunction issues. For the reasons given in relation to the 2014 Hosseini report, that aspect of the 2014 Cummins report is not properly characterised as fresh evidence. It does not appear to us that the other matters dealt with in that report would have been relevant to any issue in the trial. Thus we do not consider the 2014 Cummins report, to the extent that it constitutes fresh evidence, to be compelling.
Undated affidavit of CL
The affidavit of CL[54] is undated. However, its contents suggest that it was prepared after the applicant’s trial. In that sense, it appears to be fresh evidence. However, CL’s evidence was available to the applicant at his trial. That is plain from the affidavit itself, in which CL states that she spoke to the applicant’s lawyer and that she told him that she did not think that the applicant had committed the alleged offending. She says that the applicant’s lawyer told her that she would not be required to give evidence at the trial. The fact that CL was not called to give evidence during the applicant’s trial does not make her evidence ‘fresh’. As already noted, evidence that was available at trial is not rendered fresh by having the witness incorporate that evidence into a document prepared after trial.
[54]Exhibit 96.
Furthermore, we accept the respondent’s submission that CL’s evidence is not compelling. Her evidence relates to observations that she made of the applicant interacting with HM, AM, and his son, JV, as well as inadmissible opinion evidence that the applicant had not committed the charged acts. CL’s evidence is not highly probative of whether the alleged offending occurred, nor would it have eliminated or substantially weakened the prosecution case if it had been presented at the applicant’s trial.
Rulings and judgement in relation to DF
Three of the exhibits upon which the applicant sought to rely were two rulings made by a judge in the prosecution of DF (a former partner of FM and the biological father of AM and HM) on 16 October 2015 and on 16 November 2015, and a decision of this Court in an appeal by DF against his conviction.[55] These rulings are not mentioned in the applicant’s written case, but it appears from another document he filed that he relies on these rulings because he claims that a judge of the County Court made an adverse finding about the quality of FM’s evidence in the case concerning DF.
[55]Exhibits 124–6.
Only one of the rulings relates to evidence that was to be given by FM in that proceeding. The ruling concerned a prosecution application to rely on FM’s evidence in a manner that supported the complainant’s account of DF’s offending.
The applicant contended that the judge in that matter commented on FM’s evidence as ‘not the most reliable’. However, that is not what the judge said in her ruling. Rather, the judge found that FM’s evidence was not so lacking in reliability and credibility as to be inadmissible. Thus the ruling made by that judge is not compelling evidence.
It is unclear why the applicant seeks to rely on the judgment of this Court in the DF proceeding. The respondent observed that the third ground of appeal in that case sought to impugn the ruling made by the judge in relation to FM’s evidence. The Court refused leave to appeal on that ground. The judgment is neither fresh nor compelling evidence in the present proceeding.
Newspaper articles relating to one of the applicant’s trial counsel
The applicant filed two newspaper articles about one of his trial counsel, who pleaded guilty to charges of stalking and possession of a drug of dependence in August 2016.[56] This evidence was not available at the time of the applicant’s trial and is thus fresh evidence for the purposes of the Criminal Procedure Act.
[56]Exhibit 135.
The applicant’s written case involves various complaints about the quality of his representation at trial, including by this member of counsel. However, the subject matter of the two newspaper articles does not bear on counsel’s conduct at the applicant’s trial. Nor is it relevant to any of the issues that were in dispute at the applicant’s trial. We do not consider the evidence to be compelling.
The applicant’s s 318 applications
The applicant filed 10 separate applications seeking orders pursuant to s 318(1) of the Criminal Procedure Act requiring various persons to attend and be examined before the Court. For the reasons that follow, we dismissed each application on the day of the hearing. In summary, given our analysis of the applicant’s substantive application for leave to appeal, above, we did not consider that it was in the interests of justice that any of the witnesses be called to give evidence before us.
The principles that apply to the making of an order under s 318(1) of the Criminal Procedure Act were recently considered by this Court in Madafferi v The King.[57] As the Court there observed, there are no ‘hard and fast rules’ governing the determination of such applications. However, the Court’s discretion is guided by the basis of the application, the issues that are likely to be relevant to the questioning of the proposed witness(es), and the issues which fall to be determined in the appeal.[58]
[57][2024] VSCA 229 (‘Madafferi’).
[58]Madafferi [2024] VSCA 229, [8] (Beach and Macaulay JJA).
Importantly for present purposes, this Court observed in Madafferi that orders under s 318 have only previously been granted when the proposed examination was ‘to be of one or two potential witnesses about a very confined question or issue’.[59] Although the Court did not rule out the use of s 318 to require the attendance of ‘many witnesses and a wide-ranging field of inquiry’, it observed that ‘the greater the number of witnesses and the wider the scope of inquiry, the less likely it is that the process will serve the interests of justice’.[60] It is notable that, in the present case, the applicant seeks to examine some 20 witnesses about a large range of issues, many of which are irrelevant to, or of only peripheral relevance to, the issues on his proposed second appeal.
[59]Madafferi [2024] VSCA 229, [9] (Beach and Macaulay JJA).
[60]Madafferi [2024] VSCA 229, [9] (Beach and Macaulay JJA).
KB: KB was a witness in the applicant’s trial and provided a victim impact statement in relation to the offending against AM. She was also said to be the author of a handwritten letter. The victim impact statement and the letter were relied upon by the applicant as fresh evidence and are discussed above. The applicant sought to examine KB on the following topics:
(a)the contents of her diary;
(b)the various matters referred to in the applicant’s affidavit in support of his second application for leave to appeal dated 28 April 2023;
(c)the contents of KB’s victim impact statement and her handwritten letter; and
(d)KB’s purported ‘involvement’ with the applicant’s former solicitor and his former solicitor’s law firm.
For the reasons already given, most of the documentary evidence relating to KB is not fresh, and none of it is compelling.
We do not consider that any oral evidence KB might give in this Court would be either fresh or compelling. It is thus not appropriate to make an order under s 318 in relation to her.
Detective Senior Constable Jodie Clewley: DSC Clewley was the police informant in relation to the offending. She gave evidence at trial. The applicant appeared to seek to question her generally about the case, and to ask her about the whereabouts of 3,000 photographs and other material that was seized from the applicant’s residence, which he alleges was not returned to him following his conviction.
We do not consider that any oral evidence DSC Clewley might give in this Court would be either fresh or compelling. It is thus not appropriate to make an order under s 318 in relation to her.
DF: DF was not called as a witness at the applicant’s trial, although he was available had that course been considered desirable. On this application, the applicant wished to question DF about a broad range of topics, including DF’s relationship with FM.
We do not consider that any evidence DF might give in this Court would be either fresh or compelling. It is thus not appropriate to make an order under s 318 in relation to him.
JJ: JJ is the father of FR, who gave evidence during the applicant’s trial. The applicant stated that JJ was not ‘given the opportunity’ to give evidence during his trial. That is not correct. The prosecution sought to call JJ to give evidence about statements that the applicant had made to him about AM and HM engaging in sexual activity (without the applicant’s involvement). The applicant (through his counsel) objected to the admissibility of JJ’s evidence. Following pre-trial argument, the trial judge ruled that JJ’s evidence was not admissible in the applicant’s trial.
The applicant primarily wished to question JJ about the contents of his police statement.
We do not consider that any oral evidence JJ might give in this Court would be either fresh or compelling. It is thus not appropriate to make an order under s 318 in relation to him.
CL: Exhibit 96 of the applicant’s material is an undated affidavit, discussed above. The applicant sought to examine CL about the contents of that affidavit. As explained above, CL’s affidavit is neither fresh nor compelling.
We do not consider that any oral evidence CL might give in this Court would be either fresh or compelling. It is thus not appropriate to make an order under s 318 in relation to her.
LN: LN made a police statement in relation to the applicant’s matter on 26 November 2010. In her police statement, LN stated that she had never seen the applicant harm AM or HM, and that the children had never told her that the applicant had harmed them. However, when LN gave evidence during the applicant’s committal hearing, she said that the contents of her police statement were not true and correct. LN also alleged that the applicant had previously touched her breasts on several occasions, and that the applicant had previously told her that ‘he’d once caught [HM and AM] … on top of each other … like they were having intercourse’.
The prosecution intended to call LN to give evidence at the applicant’s trial about the applicant’s statement to her as evidence of consciousness of guilt. However, following objection by the applicant’s counsel, the trial judge ruled that her evidence was not admissible for that purpose.
The applicant sought to cross-examine LN about her statement to police and about ‘vital/essential information she has’ about him.
We do not consider that any oral evidence LN might give in this Court would be either fresh or compelling. It is thus not appropriate to make an order under s 318 in relation to her.
Matthew Page: Mr Page is a former barrister. Mr Page had been engaged by the applicant to represent him in his first application for leave to appeal. It appears that he drafted some grounds of appeal, however he ultimately did not represent the applicant on the first appeal.
The applicant sought an order pursuant to s 318 so that Mr Page can ‘argue his reasons in his Grounds of Appeal’. This is not a proper basis for the making of an order pursuant to s 318 of the Criminal Procedure Act. Mr Page is not capable of giving evidence that would be relevant to the current application for leave to appeal. Nor can s 318 be used to, in effect, compel a barrister (or former barrister) to make submissions on behalf of a person. It is thus not appropriate to make an order under s 318 in relation to Mr Page.
Various employees of the Department of Justice and Community Safety: the applicant sought orders compelling 11 employees of the Department of Justice and Community Safety to be examined in relation to the purported removal of his computer and other items from his cell on 15 October 2024. The applicant asserted that this prevented him from properly preparing his appeal.
This issue cannot bear on the determination of the applicant’s second application for leave to appeal. It is thus not appropriate to make an order under s 318 in relation to these 11 persons.
Detective Senior Constable Owen Smeal: The applicant contended that DSC Smeal was involved in the police investigation into the applicant’s offending, including accompanying HM and AM when they were medically examined on 4 August 2010 and corroborating the applicant’s police interview. DSC Smeal did not give evidence during the applicant’s trial.
The applicant sought to question DSC Smeal about the aspects of the police investigation with which DSC Smeal was involved.
It was clearly open to the applicant to have required the prosecution to call DSC Smeal at trial in order to cross-examine him about the police investigation. The applicant’s counsel chose not to do so.
Thus any evidence DSC Smeal might give in this Court is not fresh. Nor is there anything to suggest that it would be compelling. It is thus not appropriate to make an order under s 318 in relation to him.
Naomi Smith: Ms Smith was one of the barristers who represented the applicant in his trial. It appears that the applicant wishes to question Ms Smith about the conduct of his trial and about advice that she provided him regarding his prospects of successfully appealing his convictions. As the respondent observed, in an appropriate case a lawyer who appeared for an accused at trial may be compelled to give evidence pursuant to s 318.
The applicant’s proposed examination of Ms Smith would not be relevant to any of the issues that fall to be determined in his application for leave to appeal. It is thus not appropriate to make an order under s 318 in relation to her.
The applicant’s bail application
The applicant sought bail pending the outcome of his application for leave to appeal. His application for bail was some 67 pages long. In summary, he contended as follows in support of his application:
(a)He has always maintained his innocence.
(b)Had he been allowed to give evidence and present his 151 exhibits as evidence, he would have been exonerated.
(c)He has accommodation available to him should he be released on bail.
(d)He has medical conditions that need greater attention than is available in prison.
(e)He ‘needs to recover vital documents’, which ‘can only be achieved’ if he is not incarcerated.
(f)He wishes to consult a urologist to obtain evidence that he could not have committed the offences in issue.
(g)He wishes to spend time with his family, including his son who is 15 and is autistic.
He also relied on various arguments that overlapped with his substantive application for leave to appeal. In his oral submissions he relied in particular on his medical issues as supporting his application for bail.
As explained by this Court in Re Zoudi[61] and, more recently, in Mokbel v The King,[62] bail pending appeal will only be granted where exceptional circumstances are shown.[63] It is also necessary to consider whether the applicant can establish that he or she has reasonable prospects of success.[64]
[61](2006) 14 VR 580; [2006] VSCA 298 (‘Zoudi’).
[62][2025] VSCA 62 (‘Mokbel’).
[63]Zoudi (2006) 14 VR 580, 581 [2] (Maxwell P, Buchanan, Nettle, Neave and Redlich JJA); [2006] VSCA 298; Mokbel [2025] VSCA 62, [11] (Emerton P, Osborn JA and Jane Dixon AJA).
[64]Zoudi (2006) 14 VR 580, 588 [27] (Maxwell P, Buchanan, Nettle, Neave and Redlich JJA); [2006] VSCA 298; Mokbel [2025] VSCA 62, [13] (Emerton P, Osborn JA and Jane Dixon AJA).
More generally, in both Zoudi and Mokbel this Court confirmed the principles set out in Re Jackson:[65]
[65][1997] 2 VR 1.
(1)First, to reiterate the words of Brennan J in Chamberlain v R, the central feature in the administration of criminal justice is the jury and it is a mistake to regard the effect of its verdict as contingent upon confirmation by an appellate court….
(2)Secondly, although there is a statutory right of appeal, it is a right which is conditioned by the presumption which operates in favour of the validity of the conviction and sentence and it is, therefore, not a right to have the conviction or sentence suspended pending the hearing and determination of an appeal.
(3)Thirdly, as has been confirmed by the High Court in Cabal, to allow bail pending the hearing of an appeal, after a person has been convicted and imprisoned:
• makes the conviction appear contingent until confirmed;
• places the court in the invidious position of having to return to prison a person whose circumstance may have changed dramatically during the period of liberty on bail;
• encourages unmeritorious appeals;
• undermines respect for the judicial system in having a ‘recently sentenced man walking free’; and
• undermines the public interest in having convicted persons serve their sentences as soon as is practicable.
…
(4)Fourthly, and consequently, an order granting bail will only be made if there are exceptional circumstances.
(5)Fifthly, ‘exceptional circumstances’ means circumstances which are truly exceptional.[66]
[66]Zoudi (2006) 14 VR 580, 588–9 [28] (Maxwell P, Buchanan, Nettle, Neave and Redlich JJA); [2006] VSCA 298 (citations omitted), quoted in Mokbel [2025] VSCA 62, [13] (Emerton P, Osborn JA and Jane Dixon AJA).
These principles are relevant also to a second or subsequent appeal.
At the conclusion of the hearing of the application for leave to appeal we concluded that the applicant had no real prospects of success. That conclusion is now reflected more formally in these reasons for judgment. We further considered that none of the material presented by the applicant in support of his application for bail constituted ‘exceptional circumstances’. For those reasons, we refused the application for bail.
Conclusion
For the foregoing reasons, leave to appeal must be refused.
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