JUDGES:	PRIEST, MACAULAY and TAYLOR JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 November 2022
DATE OF JUDGMENT:	15 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 278
JUDGMENT APPEALED FROM:	DPP v White (a pseudonym) (Unreported, 30 July 2021, County Court of Victoria, Judge Gaynor) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Incest and related charges – Sexual penetration of a child between 10 and 16 and related charges – Two complainants – Charges against each five years apart – Whether impermissible joinder of charges – Whether charges founded on the same facts — Whether offences form or are part of a series of the same or similar character –Whether substantial miscarriage of justice – Counsel for applicant consented to or acquiesced in joinder – Whether accused can consent to joinder of charges for unrelated offences in a single indictment – Whether forensic advantage outweighed the prejudicial effect to the applicant – Application for leave to appeal granted – Appeal allowed – New trials ordered – Criminal Procedure Act 2009; ss159(3)(c), ss170, ss193, ss276(1) – Fleming (a pseudonym) v The Queen [2021] VSCA 206; De Jesus v The Queen (1986) 68 ALR 1; Mulligan (a pseudonym) v The Queen [2017] VSCA 94; R v Barrell and Wilson (1979) 69 Cr App R 250; Nicholls v The Queen [2016] VSCA 250; TKWJ v The Queen (2002) 212 CLR 124 considered.

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Counsel
Applicant:		Mr T Kassimatis KC with Ms G Connelly
Respondent:		Mr C Boyce KC
Solicitors
Applicant:	Balmer & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA:

Convictions and grounds of appeal

Throughout July 2021, the applicant was tried on an indictment in the County Court which charged him with six offences against his sister, ‘PS’ (charges 1 to 6); and 10 offences against a former girlfriend, ‘MK’ (charges 7 to 16).
Of the charges involving PS, four were of incest[2] (charges 2, 4, 5 and 6); one was committing an indecent act in the presence of a child under 16 (charge 1);[3] and one was common assault (charge 3).[4] Each charge alleged that the relevant offence took place within a 22 month period between 1 March 1994 and 31 December 1995, when PS was aged between nine and 11 years[5] and the applicant was aged 14 to 16.[6]
[2] Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991, s 44(4).
[3]Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991, s 47.
[4]An offence at common law.
[5]Her date of birth is 15 October 1984.
[6]His date of birth is 31 March 1979.
The charges involving MK, his former girlfriend, included sexual penetration of a child between 10 and 16 (charges 7, 8,…

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 White (a pseudonym) v The King

Details

AGLC: White (a pseudonym) v The King [2022] VSCA 278
Case: [2022] VSCA 278
Decision Date: 15 December 2022

CaseChat Overview and Summary

The Court of Appeal of the Supreme Court of Victoria considered an appeal by the applicant, White, against his conviction and sentence. The applicant was convicted of multiple charges including incest and sexual penetration of a child between 10 and 16 years of age, with two complainants whose allegations were separated by a five-year gap. The Court was tasked with determining whether the charges against the applicant were improperly joined and whether they were founded on the same facts. It was also necessary to examine whether the offences formed or were part of a series of the same or similar character, and whether a substantial miscarriage of justice had occurred. Additionally, the Court had to consider whether the applicant could consent to the joinder of charges for unrelated offences in a single indictment, and whether any forensic advantage outweighed the prejudicial effect to the applicant.

The Court found that the charges against the applicant were improperly joined, as they were not founded on the same facts and did not form or constitute part of a series of the same or similar character. The Court held that the joinder of charges was impermissible, as it could lead to a substantial miscarriage of justice. The Court emphasised that the accused cannot consent to the joinder of charges for unrelated offences in a single indictment. Furthermore, the Court found that the forensic advantage did not outweigh the prejudicial effect to the applicant. Consequently, the Court granted leave to appeal, allowed the appeal, and ordered new trials for the applicant.

The Court of Appeal quashed the applicant's convictions and ordered new trials, following the principles established in Fleming v The Queen, De Jesus v The Queen, Mulligan v The Queen, R v Barrell and Wilson, Nicholls v The Queen, and TKWJ v The Queen. The Court's decision was based on the improper joinder of charges and the potential for a substantial miscarriage of justice. The Court of Appeal's decision highlighted the importance of ensuring that charges are properly joined and that the accused's rights are protected throughout the criminal justice process.

Orders