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AJP (a pseudonym) v The Queen [2022] VSCA 187

Victorian Court of Appeal
Priest, McLeish and Walker JJA

AJP (a pseudonym) v The Queen

Judgment Date: 
2 September 2022

CRIMINAL LAW - Appeal - Conviction - Fresh evidence - Applicant convicted in 2012 of common assault, incest and making threat to kill - Incest charge based on allegation that applicant inserted blunt object into complainant's anus - Expert evidence adduced at trial that complainant had anal fissure which could be caused by insertion of blunt object, as well as by other things - Complainant told police he had never done anything that could have caused any injury to his anus - Complainant gave evidence that he told no one about abuse until 2008 - Complainant gave evidence at later, unconnected committal that he had inserted object into own anus on different occasion - Complainant also gave evidence at later committal that he told another person about abuse before 2008 - Fresh evidence could have affected jury's assessment of complainant's credibility - Evidence could have provided alternative explanation for complainant's injury - Substantial miscarriage of justice because fresh evidence gave rise to significant possibility jury would have acquitted if evidence available at trial - Sentence already served in full - Appeal allowed - Orders for acquittal.

Criminal Procedure Act 2009, ss 276, 277

R v Nguyen & Tran [1998] 4 VR 394; R v A2 (2019) 269 CLR 507, applied.