Weston v The King - [2024] VSCA 184

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0235

NICHOLAS DAVID WESTON	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, McLEISH and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2024
DATE OF JUDGMENT:	26 August 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 184
JUDGMENT APPEALED FROM:	[2020] VCC 583 (Judge Gucciardo)

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CRIMINAL LAW – Conviction – Appeal – Application for leave to bring second conviction appeal – Rape – New evidence associated with unrelated offending of Crown witness – Whether new evidence impugns credibility of Crown witness – Whether evidence fresh and compelling – Evidence fresh but not compelling.

CRIMINAL LAW – Conviction – Appeal – Application for leave to bring second conviction appeal – New evidence about complainant’s mother’s occupation and her comments about aspects of trial – Evidence about occupation not fresh – Evidence about comments fresh but not compelling.

CRIMINAL LAW – Conviction – Appeal – Application for leave to bring second conviction appeal – Evidence of recent sexual history – Evidence could have been adduced at trial – Evidence not fresh – Application for leave to bring second appeal refused.

CRIMINAL LAW – Conviction – Appeal – Application for leave to bring second conviction appeal – Assertion of error of law on face of record – Submissions regarding use at trial of evidence of complainant’s blood alcohol concentration – Issue taken with summary of that evidence by sentencing judge and on first appeal – Evidence not fresh – Application for leave to bring second appeal refused.

Crimes Act 1958, s 38(1); Criminal Procedure Act 2009, ss 326A, 326C.

Roberts v The Queen (2020) 60 VR 431, applied.

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Counsel
Applicant:		In person
Respondent:		Mr T Bourbon
Solicitors
Applicant:	Not applicable
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
MCLEISH JA
WALKER JA:

The applicant was tried in December 2019 on five charges of rape contrary to s 38(1) of the Crimes Act 1958. It was alleged that the rapes occurred on a single occasion on 26 November 2017 at the applicant’s apartment. The complainant, ‘K’, was staying in the apartment together with a friend ‘M’, having made a booking to do so on Airbnb.
On 12 December 2019, the applicant was convicted of four charges of rape. He was acquitted of a further charge of rape. On 8 May 2020, he was sentenced to a term of 8 years’ imprisonment, with a non-parole period of 5 years and 3 months.

The case against the applicant

The applicant has already appealed against his conviction. On 13 December 2021, this Court dismissed the appeal.[1] The reasons of T Forrest JA and Macaulay AJA, themselves drawing on the reasons of Kyrou JA who earlier refused an extension of time in which to seek leave to appeal,[2] succinctly summarised the offending:
[1]Parker (a pseudonym) v The Queen [2021] VSCA 348 [7] (Priest JA), [11], [83] (T Forrest JA and Macaulay AJA) (‘First Appeal Judgment’).
[2]Parker…

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 Weston v The King

Details

AGLC: Weston v The King [2024] VSCA 184
Case: [2024] VSCA 184
Decision Date: 26 August 2024

CaseChat Overview and Summary

In the matter of Weston v The King, the appellant sought leave to appeal against his conviction for rape for the second time. The application was brought under section 38(1) of the Crimes Act 1958 and section 326A and 326C of the Criminal Procedure Act 2009. The first appeal had been dismissed by the Court of Appeal. The central issue before the court was whether the appellant had made out a case for leave to bring a second appeal based on new evidence or an error of law on the face of the record.

The court considered four grounds for the second appeal: new evidence associated with the unrelated offending of a Crown witness, evidence about the complainant’s mother’s occupation and her comments about aspects of the trial, evidence of the complainant’s recent sexual history, and an assertion of error of law regarding the use of evidence of the complainant’s blood alcohol concentration at trial. The court found that the evidence about the Crown witness’s unrelated offending was fresh but not compelling. Evidence about the complainant’s mother’s occupation was not fresh, and her comments, though fresh, were not compelling. The evidence of the complainant’s recent sexual history was not fresh as it could have been adduced at trial. Lastly, the court held that the error of law regarding the evidence of the complainant’s blood alcohol concentration was not fresh and did not warrant leave to appeal.

Consequently, the court dismissed the application for leave to bring a second appeal. The reasoning was that none of the grounds presented fresh and compelling evidence or a clear error of law. The decision was consistent with the principles established in Roberts v The Queen.

Orders