Sutton (a pseudonym) v The King - [2025] VSCA 129

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

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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 Sutton (a pseudonym) v The King

Details

AGLC: Sutton (a pseudonym) v The King [2025] VSCA 129
Case: [2025] VSCA 129
Decision Date: 5 June 2025

CaseChat Overview and Summary

Sutton (a pseudonym) has brought a second appeal against his conviction for sexual offences against children. The Court of Appeal was asked to consider whether his appeal was founded on fresh and compelling evidence, whether it was in the interests of justice for several witnesses to be called, and whether the trial judge had erred in not discharging the jury. The applicant argued that he was denied his right to give evidence and to have witnesses or documents produced to prove his innocence. The court found that the evidence was not fresh or compelling, and the majority of the evidence was available at the time of the trial. The applicant’s evidence was not new or compelling, and it did not justify a departure from the general rule that a second appeal should not be entertained.

The court considered the application for leave to appeal under the Criminal Procedure Act 2009, and whether the evidence was ‘fresh and compelling’. The applicant argued that the evidence was never used in his trial and should therefore be deemed as ‘fresh evidence’. However, the court found that the evidence was not fresh or compelling, and the majority of the evidence was available at the time of the trial. The applicant’s evidence was not new or compelling, and it did not justify a departure from the general rule that a second appeal should not be entertained. The court noted that the applicant’s written case was more than 200 pages long, far exceeding the 10-page limit for applications for leave to appeal.

The court also considered whether it was in the interests of justice to require several witnesses to give evidence. The applicant sought to examine a large number of witnesses about a range of issues, but the court found that it was not in the interests of justice to require witnesses to give evidence. The court noted that the applicant had been given an opportunity to give evidence at his trial, and that the evidence he sought to adduce was not new or compelling. The court also noted that requiring witnesses to give evidence would cause significant inconvenience and expense, and would be contrary to the interests of justice. Finally, the court considered whether the trial judge had erred in not discharging the jury. The applicant argued that the trial judge had erred in not discharging the jury, but the court found that the trial judge had correctly exercised her discretion in not discharging the jury. The court noted that the applicant’s evidence was not new or compelling, and that there was no basis for interfering with the trial judge’s decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 innocenceThe 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 EXHIBITSThat 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
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