Brian Cox and v The Queen and

Link copied
Case Copied 21 min read

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0046

BRIAN COX
Appellant
v
THE QUEEN
Respondent

---

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)

---

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.

---

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

  1. 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.
  1. 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.

  1. 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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Brian Cox and v The Queen and and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2015] VSCA 28
Decision Date

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.