Brodie Larsen (a pseudonym) v The Queen - [2020] VSCA 335

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0190

BRODIE LARSEN (a pseudonym)[1]	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Respondent

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

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JUDGES:	MAXWELL P, T FORREST JA and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 October 2020
DATE OF JUDGMENT:	23 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 335
JUDGMENT APPEALED FROM:	R v Brodie Larsen (a pseudonym) (Unreported, County Court of Victoria, Judge Hampel, 10 August 2020)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Tendency evidence – Sexualised communications with underage girl – Whether accused believed that complainant over 16 – Whether accused aware that complainant under 18 – Prior conviction on similar charges – Whether evidence of prior conduct probative of relevant tendency – Narrow issue regarding accused’s belief about complainant’s age – Low probative value – Significant prejudicial effect – Evidence inadmissible – Appeal allowed – Ruling set aside – Evidence Act2008 ss 97, 101.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr H Rattray and Mr W Barker	Daniel Taylor Lawyers
For the Respondent	Mr J Saunders	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P
T FORREST JA
MACAULAY AJA:

Summary

The applicant (‘L’) is charged with five offences: using a carriage service to procure a person under 16 for sexual activity; using a carriage service to transmit indecent communications to a person under 16; using a carriage service to transmit child pornography; and two charges of breaching reporting obligations.

To make out the first and second charges, the Crown must prove that the person to whom the activity was directed (‘T’) was under 16. The defence concedes that she was (T was 12 at the time). L’s defence to those charges is that he believed T was 16 or older, which he must establish on the balance of probabilities. To make out the third charge, the Crown must prove that L knew that, or was reckless as to whether, T was under 18 years of age.

The Crown proposes to lead what is said to be tendency evidence to rebut L’s defence that he believed T was 16 or older (charges 1 and 2), and to support its own proofs that he was reckless as to whether she was under 18 (charge 3). The evidence proposed to be called will show that in 2014 L met a 15-year-old girl (B) on Facebook, sent her a ‘friend request’ and then sent some nude pictures of himself to her, asking her to send him some nude pictures of herself. Using social media and mobile telephone applications, he sent B photographs of his erect penis and encouraged her to send him photographs of herself.

After they had begun communicating, B told him several times that she was 15. L was therefore aware, before he began transmitting the images,…

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: [2020] VSCA 335
Decision Date: 23 December 2020

CaseChat Overview and Summary

Brodie Larsen, the appellant, sought to appeal an interlocutory decision that allowed the admission of certain evidence in his criminal trial. The nature of the dispute centred on the admissibility of specific evidence related to communications that were deemed sexualised and directed towards an underage girl. The High Court of Australia was the forum for this appeal. The legal issues at hand primarily revolved around whether the evidence in question was relevant and admissible under the Evidence Act 2008, particularly considering the accused's belief regarding the complainant's age and awareness of the complainant being under 18. The court needed to determine if the probative value of the evidence outweighed its prejudicial effect.

The court examined the provisions of the Evidence Act 2008, specifically sections 97 and 101, which address the admissibility of evidence with a tendency to prove that a person has a propensity towards criminal misconduct. Given the narrow issue of whether the accused believed that the complainant was over 16 years old, the court found that the probative value of the evidence was low. Furthermore, the potential for significant prejudicial effect was high, as the evidence could influence the jury's decision in a manner unrelated to the specific charges. Consequently, the court concluded that the evidence should not have been admitted.

The High Court allowed the appeal and set aside the ruling that had admitted the evidence. The court's reasoning was grounded in the principles of balancing probative value against prejudicial effect, leading to the conclusion that the evidence was inadmissible under the statutory provisions. This decision underscores the importance of ensuring that evidence presented in criminal trials adheres strictly to the criteria set out in the Evidence Act 2008. The final orders of the court were to disallow the previously admitted evidence and to direct the lower court to proceed with the trial without it.

Orders