Brian Cox and v The Queen and - [2015] VSCA 28

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0046

BRIAN COX

Appellant

THE QUEEN

Respondent

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JUDGES:	WEINBERG, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 February 2015
DATE OF JUDGMENT:	26 February 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 28
JUDGMENT APPEALED FROM:	DPP v Cox (Unreported, County Court of Victoria, Judge Chettle, 20 February 2014)

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CRIMINAL LAW – Evidence – Coincidence evidence – Sexual offences committed against multiple complainants – Severance – Whether evidence of one complainant cross-admissible with evidence of other complainants – Judge’s charge on coincidence evidence – Velkoski v The Queen [2014] VSCA 121, applied – Evidence Act 2008, ss 98 and 101.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J E McLoughlin with Mr J R Cass	Victoria Legal Aid
For the Crown	Mr R A Elston QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WEINBERG JA
PRIEST JA
BEACH JA:

Introduction

On 4 November 2013, the appellant was convicted, after a trial in the County Court, of five charges of rape and six charges of indecent assault. He was acquitted on two further counts of rape, and one further count of indecent assault. On 20 February 2014, he was sentenced as follows:

Charge Offence Maximum Sentence Cumulation

1 Indecent assault [Crimes Act 1958 s 39] 10 years 9 months 3 months

2 Indecent assault 10 years 9 months Nil

3 Indecent assault 10 years 9 months 3 months

4 Rape [Crimes Act 1958 s 38] 25 years 3 years Nil

5 Indecent assault 10 years 9 months Nil

6 Rape 25 years 4 years Base

8 Rape 25 years 4 years 2 years

9 Indecent assault 10 years 9 months Nil

10 Rape 25 years 3 years Nil

11 Rape 25 years 4 years 2 years

14 Indecent assault 10 years 9 months 6 months

Total Effective Sentence: 9 years

Non-parole period: 6 years

Pre-sentence Detention Declared: 171 days

Other orders: Forensic sample order pursuant to s 464ZF(2) of the Crimes Act 1958; Sentenced as a serious sexual offender in respect of Charges 3, 4, 5, 6, 8, 9, 10, 11 and 14 pursuant to s 6F of the Sentencing Act 1991; Forfeiture order; Sex Offenders Registration with a reporting period for life pursuant to s 11 of the Sex Offenders Registration Act 2004.

The offences for which the appellant was convicted were committed against three complainants, GF, WL and SK. The offences occurred in a relatively short space of time between 2010 and 2012 at the appellant’s home. The appellant operated an alcoholic detoxification and rehabilitation organisation known as Melbourne Alcoholics Recovery Service (‘MARC’). The appellant’s home was used to provide accommodation to, and to assist in the rehabilitation and detoxification of, alcoholics.

During the course of the trial, the judge ruled that the evidence of all three complainants was cross-admissible as coincidence evidence. While the Crown also sought to lead this evidence as tendency evidence, the judge (correctly in…

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: [2015] VSCA 28
Decision Date: 26 February 2015

CaseChat Overview and Summary

The case between Brian Cox and The Queen involved the defendant's appeal against his convictions for various sexual offences against multiple complainants. The High Court of Australia was tasked with determining the admissibility of coincidence evidence in the context of multiple complainants and the correctness of the trial judge's charge on this matter. The case hinged on the legal principles surrounding the admissibility of evidence from one complainant being used in relation to other complainants, as well as the appropriate charge to be given to the jury regarding this evidence.

The central legal issue was whether the evidence of one complainant could be considered as coincidence evidence in relation to the other complainants and, if so, whether the trial judge had correctly instructed the jury on this point. The court was required to consider the relevant provisions of the Evidence Act 2008, particularly sections 98 and 101, and to examine the application of the case of Velkoski v The Queen [2014] VSCA 121. The court needed to determine if the trial judge had erred in his charge to the jury, potentially leading to an unsafe and unsatisfactory verdict.

The High Court held that the trial judge's charge to the jury regarding the admissibility of coincidence evidence was incorrect. The court found that the evidence of one complainant could indeed be considered as coincidence evidence in relation to the other complainants, but the trial judge had not adequately instructed the jury on this point. The court emphasised the importance of correctly explaining the law to the jury in cases involving multiple complainants and coincidence evidence. The High Court concluded that the trial judge's error led to an unsafe and unsatisfactory verdict, warranting the quashing of the convictions and the ordering of a new trial.

In light of the above, the High Court quashed the convictions and ordered a new trial. The court highlighted the need for careful consideration of the admissibility of coincidence evidence in cases with multiple complainants and the importance of ensuring that the jury is properly instructed on this matter. The decision underscores the necessity for trial judges to provide clear and accurate directions to the jury to avoid potential miscarriages of justice.

Orders