| 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…
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- AGLC
- Weston v The King [2024] VSCA 184
- Case
- [2024] VSCA 184
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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