Bentley Hurst (a pseudonym)[1] v The Queen - [2021] VSCA 3

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0267

BENTLEY HURST (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	NIALL and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 January 2021
DATE OF JUDGMENT:	21 January 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 3
JUDGMENT APPEALED FROM:	DPP v [Hurst (a pseudonym)] (unreported, County Court of Victoria, Judge Hampel, 18 December 2020)

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CRIMINAL LAW – Interlocutory appeal – One charge of indecent act with child under 16 – One charge of incest – Applicant sought leave to cross-examine complainant about two comments on her Facebook page and one ‘like’ of another Facebook page – Trial judge refused leave – Applicant applied for certification – Trial judge refused application to certify – Application to review refusal to certify – Application for leave to appeal against interlocutory decision – Evidence would not have substantial relevance to a fact in issue in the trial – Denial of leave to cross-examine not of sufficient importance to justify interlocutory appeal – Application to review refusal to certify refused – R v Frazier [2017] VSCA 370 applied – Criminal Procedure Act 2009 ss 295, 296, 297, 342, 346, 349, 352.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Lavery	Mr G Clancy, Kerry Clancy Solicitors
For the Respondent	Ms J L Piggott	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
EMERTON JA:

The applicant is facing a trial in the County Court on an indictment containing two charges of sexual offending against his daughter. The alleged offending occurred on the same day, which the indictment identifies as being between 1 January 2015 and 30 March 2016. The complainant turned 14 in March 2015. Charge 1 alleges that the applicant committed an indecent act with the complainant who was a child under 16 and charge 2 alleges incest involving penile penetration of the complainant’s anus.

In mid-2017, the complainant told her boyfriend that she had been raped by her father, and a counsellor that she had been sexually assaulted but without telling the counsellor the identity of the perpetrator. In December 2018, she told her mother and then went to the police. She gave an account of the alleged offending in a VARE which was recorded on 12 December 2018. In accordance with the provisions of the Criminal Procedure Act2009 (the ‘CPA’), the VARE will constitute the complainant’s evidence-in-chief at the forthcoming trial. The applicant has been arraigned and a special hearing is to be held at which the complainant will be cross-examined and the trial continue. That cross-examination will occur with the assistance of an intermediary.

In her VARE, which is relatively brief, the complainant gives her account of the offending. She also describes an earlier incident when she was 13 or 14 years…

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.

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Details

Case: [2021] VSCA 3
Decision Date: 21 January 2021

CaseChat Overview and Summary

Bentley Hurst sought leave to appeal against an interlocutory decision in the County Court of Victoria, which had refused him the opportunity to cross-examine a complainant on the basis of certain social media posts. The applicant faced charges of indecent acts with a child under 16 and incest. The applicant argued that the Facebook posts and a ‘like’ on another page should be the subject of cross-examination because they were relevant to the credibility and reliability of the complainant. The trial judge had ruled that the evidence was not of substantial relevance to any fact in issue in the trial and denied the application to cross-examine.

The Court of Appeal was required to determine whether the denial of leave to cross-examine the complainant about the Facebook posts was of sufficient importance to warrant an interlocutory appeal. The Court also had to determine whether the refusal to certify the interlocutory decision for appeal was correct. The applicant contended that the Facebook posts were highly probative of the complainant's credibility, and the trial judge had erred in assessing the relevance of the evidence. The Court needed to examine whether the trial judge's assessment was correct and whether the refusal to certify was an error of law.

The Court found that the trial judge had correctly assessed the relevance of the Facebook posts to the issues in the trial. The posts did not have substantial relevance to a fact in issue and, therefore, the denial of leave to cross-examine was not of sufficient importance to justify an interlocutory appeal. The Court also found that the refusal to certify the interlocutory decision was correct. The Court applied the decision in R v Frazier, which established the criteria for certification, and found that the trial judge's decision did not fall within the criteria. The Court dismissed the application to review the refusal to certify and the application for leave to appeal against the interlocutory decision.

The Court made no order for costs. The applicant's application to review the refusal to certify and his application for leave to appeal against the interlocutory decision were both dismissed. The Court held that the trial judge's assessment of the relevance of the Facebook posts was correct and that the refusal to certify was not an error of law. The Court found that the evidence did not have substantial relevance to any fact in issue in the trial, and therefore the denial of leave to cross-examine was not of sufficient importance to warrant an interlocutory appeal.

Orders